Flag of MalaysiaNGO Law Monitor: Malaysia

Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Last updated 17 January 2016

Update: In 2015, the government increasingly used Section 124 of the Penal Code (prohibiting activities detrimental to parliamentary democracy) against critics of the government. In addition, on October 1, 2015, the Court of Appeal ruled that Section 9(1) of the Peaceful Assembly Act was constitutional in the case of R. Yuneswaran, an opposition politician. The ruling departed from the judgment made by the same Court of Appeal in 2014 in the case of Nik Nazmi, which declared that Section unconstitutional, thereby raising legal concerns and confusion.

On April 9, 2015, an amendment to the Sedition Act, 1948 was passed by the parliament, making it even more draconian. On October 6, 2015, the Federal Court, the highest court of Malaysia, dismissed the constitutional challenge to the Sedition Act by Azmi Sharom, a law professor who was charged for providing a "legally wrong" opinion about the powers of the Sultan.

In September 2015, Khairuddin Abu Hassan and his lawyer Matthias Chang were both arrested under the Security Offences (Special Measures) Act (SOSMA) for attempting to provide evidence to Swiss authorities on the 1MDB scandal, in which Prime Minister Najib Tun Razak is accused of channeling hundreds of millions of dollars from government-run company 1MDB to his personal accounts. Khairuddin became the first politician to be arrested under the SOSMA, which allows 28 days of detention for investigation and no bail after being charged. Please see the "Barriers to Speech / Advocacy" and "Barriers to Assembly" sections below in this report for more details.


Introduction

Malaysia is a federal constitutional monarchy with a population of approximately 30.5 million people.1  It has a parliamentary system of government headed by a prime minister elected through periodic multi-party elections, although the country has been ruled continuously by a single coalition dominated by the United Malays National Organisation (UMNO) since its independence in 1957.  Its legal system is based on common law, similar to the Westminster style.  Parliament enacts laws that apply throughout the country, and individual state legislative assemblies enact laws for their respective states.

Civil society organizations (CSOs) in Malaysia operate in a much more restrictive environment than what is guaranteed in the Federal Constitution, which is the “supreme law of the land.”  They face an array of laws that contravene the fundamental freedoms of association, assembly and expression. 

For example, despite the guarantee of freedom of association under Article 10 of the Federal Constitution, several national laws exist in direct contravention of this fundamental right.  One such law is the Societies Act 1966, which governs political parties and non-governmental organizations (NGOs).  The Societies Act is not only restrictive in the initial registration process, which is lengthy and often delayed, but also in the many conditions imposed on activities, the burdensome reporting provisions and the omnipresent threats of deregistration or dissolution, all of which are amplified by the broad and arbitrary powers afforded to the Registrar of Societies.  Because of the many difficulties faced by CSOs in their efforts to register as societies, including the dismissal of their applications, most resign themselves to undertake their advocacy activities illegally.  Others choose to circumvent the Societies Act by registering as companies; however, that in itself presents many legal and bureaucratic obstacles to raising money for their causes.

Moreover, restrictions to freedoms of expression and assembly in various laws, such as the Peaceful Assembly Act, 2012 (which replaced the equally restrictive Section 27 of the Police Act, 1967), the Universities and University Colleges Act, 1971, the Sedition Act, 1948, the Printing Presses and Publications Act, 1984, and the Penal Code, among others, have seriously curtailed the work of many NGOs and civil society groups in Malaysia.  

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At a Glance

Organizational Forms Societies Companies limited by guarantee
Registration Body Registrar of Societies (ROS) Companies Commission of Malaysia
Approximate Number 52,980 registered societies with 67,013 branches (as of December 31, 2013) Unknown
Barriers to Entry Prohibition against unregistered groups.
Minimum number of 7 founders required.
No fixed time period for review of applications.
Vague grounds for denial.
Limited right to appeal.
At least two founding directors must reside in Malaysia.
Barriers to Activities Vague requirements to respect tenets of Malaysian life and government.
Criminal penalties for failure to comply with Societies Act.
Government access to company offices without prior notification.
Criminal penalties for failure to submit annual returns.
Barriers to Speech and/or Advocacy Restrictions on political activities if incompatible with the interest of security of Malaysia, public order and/or morality.
Restrictions on assembly.
Internet censorship.
Restrictions on assembly.
Internet censorship.
Barriers to International Contact Government authority to prohibit society from having contact with anyone outside Malaysia. None
Barriers to Resources None None
Barriers to Assembly 10-days advance notification, excessive force used against protesters, no assemblies allowed on "public places," such as roads. 10-days advance notification, excessive force used against protesters, no assemblies allowed on "public roads."

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Key Indicators

Population 30,513,848 (July 2015 est.)
Capital Kuala Lumpur
Type of Government Constitutional monarchy
Life Expectancy at Birth Male: 71.97 years
Female: 77.73 years (2012 est.)
Literacy Rate Male: 70.16%
Female: 76.87% (2011 est.)
Religious Groups Muslim (official) 61.3%, Buddhist 19.8%, Christian 9.2%, Hindu 6.3%, Confucianism, Taoism, other traditional Chinese religions 1.3%, other 0.4%, none 0.8%, unspecified 1% (2010 est.)
Ethnic Groups Malay 50.1%, Chinese 22.6%, indigenous 11.8%, Indian 6.7%, other 0.7%, non-citizens 8.2% (2010 est.)
GDP per capita $24,700 (2014 est.)

Source: CIA World Factbook

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International Rankings

Ranking Body Rank Ranking Scale 
(best – worst possible)
UN Human Development Index 62 (2014) 1-182
World Bank Rule of Law Index 72 (2012) 100 – 0
World Bank Voice & Accountability Index 44 (2012) 100 – 0
Transparency International 53 (2013) 1-183
Freedom House: Freedom in the World Status: Partly Free
Political Rights Score: 4
Civil Liberties Score: 4 (2015)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index 2014
117 (2015) 178 – 1

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Legal Snapshot

International and Regional Human Rights Agreements

Key International Agreements Ratification* Year
International Covenant on Civil and Political Rights (ICCPR) No --
Optional Protocol to ICCPR (ICCPR-OP1) No --
International Covenant on Economic, Social, and Cultural Rights (ICESCR) No --
Optional Protocol to ICESCR (OP-ICESCR) No --
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) No --
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Yes 1995
Optional Protocol to the Convention on the Elimination of Discrimination Against Women No --
Convention on the Rights of the Child (CRC) Yes 1995
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) No --
Convention on the Rights of Persons with Disabilities (CRPD) Yes 2008

* Category includes ratification, accession, or succession to the treaty

Constitutional Framework

The rights of citizens to freedom of expression, freedom of assembly, and freedom of association are governed by Article 10 of the Federal Constitution of Malaysia.2  However, these rights may be restricted where it is considered to be in the interest of security, public order and/or morality of the State.3


Furthermore, legislation restricts civil society by curtailing the fundamental right to freedom of speech and expression through the Sedition Act of 1948 (reaffirmed by the Government of Malaysia in 2012 4 ), the Official Secrets Act of 1972, the Printing Presses and Publications Act of 1984, Security Offences (Special Measures) Act 2012, and criminal defamation laws, among others. Despite previous promises to repeal the Sedition Act, in April 2015, the ruling parties adopted amendments to strengthen the Sedition Act, increasing penalties from a fine and/or a prison term of up to three years to a mandatory prison term of three to fifteen years.


The right to assemble “peacefully and without arms”5  used to be impeded by Section 27 of the Police Act of 1967, which criminalized any assemblies that took place without a police permit, and was enforceable against three or more persons.6  This provision, however, was replaced by the Peaceful Assembly Act in 2012, which introduces equally restrictive and objectionable provisions.  Notably, street protests are prohibited altogether, while non-citizens and children below the age of fifteen are barred from participating in public assemblies.  Meanwhile, Section 141 of the Penal Code stipulates that an assembly of five or more persons is designated an “unlawful assembly” on several broad and general grounds, including, among others, if the common object of the persons composing the assembly is to overawe by criminal force the authorities and public servants, to resist the execution of any law or legal process, to commit any mischief or criminal trespass or other offences.

The right to form associations, although recognized in the Constitution, is highly limited by statutory law. The Societies Act of 1966 prescribes that only registered organizations may function as societies.  Restrictions in breach of the fundamental right of freedom of association are also imposed on academics, trade unions and persons belonging to the Malaysian Bar Council.  The Trade Unions Act of 1959 prohibits public officers from joining any trade union,7  and officers of trade unions cannot hold office in political parties unless exemptions are sought.8  The Legal Profession Act of 1979 disqualifies a person from being a member of the Bar Council or a Bar Committee if he or she holds office in any trade union, political party, or other organization which undertakes activities which can be construed as being political in nature.9  The Universities and University Colleges Act (UUCA) 1971 is also used to restrict freedom of association by mandating university approval for student associations.  However, amendments to the UUCA that came into force on August 1, 2012 allow students to join political parties and campaign as candidates in elections as long as they are not engaging in political activities on campus. However, because the university retains the power to forbid students’ participation in any organization they deem “unsuitable to the interests and well-being of the students or the University,” the true freedom of university students to participate in politics remains somewhat ambiguous.

 

National Laws and Regulations Affecting Sector

Relevant national-level laws and regulations affecting civil society can be divided into three different categories, as listed here below.

1. Legislation affecting freedom of association / CSOs:

2. Legislation relating to the freedoms of speech and of assembly:

  • Sedition Act 1948 (the government announced on July 11, 2012 that it will repeal this law and replace it with the three following proposed bills, which were made public in June 2014)

3. Other relevant legislation:

In June 2012, the Malaysian government tabled amendments to the Evidence Act, which was passed hastily in both the Lower and Upper Houses of Parliament. The amendments introduce a new provision, Section 114(A), which holds Internet account holders and intermediaries liable for content published through its accounts/services. Under the new provision, if an anonymous person posts content deemed offensive or illegal using another person's Internet account, it will be account holders that will be held liable - unless proven otherwise. In other words, the burden of proof is placed on Internet account holders rather than the prosecutor/investigator.15

The amendment was strongly criticized by rights and media freedom groups as violating freedom of speech (especially of intermediaries such as publishers, domain owners and even public internet-access spot owners), and called for the repeal of the new provision.16 Notwithstanding this, a Minister in the Prime Minister's Department, Datuk Seri Nazri Aziz, backed the amendment by stating that it is necessary to protect the security of the state.17 In response, the Human Rights Commission of Malaysia (SUHAKAM) urged the government to review or repeal the new law that creates a significant space for violating the freedom of expression on the Internet. The controversial section 114(A) breaches the freedom of speech guaranteed by the Article 19 of the Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights. SUHAKAM also stated that the argument of prioritizing national security should not trump basic human rights and freedoms.18

Peaceful Assembly Act 2012

The Peaceful Assembly Bill was tabled in Parliament on 22 November 2011, two days ahead of schedule and without consulting civil society.  The Bill introduces several controversial and objectionable provisions.  For instance:

  • Prohibition of street protests (defined widely as “open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes”19);20
  • Prohibition of organization and participation in peaceful assemblies by foreigners (defined as “non-citizens”);21
  • Prohibition of organization of assemblies by persons below the age of 21;22
  • Prohibition of participation in peaceful assemblies by children below the age of fifteen years;23
  • Unduly onerous responsibilities and restrictions on organizers of assemblies (e.g., to ensure that no persons in the assembly “act or make any statement which has a tendency to promote feelings of ill-will, discontent or hostility amongst the public at large or do anything which will disturb public tranquillity”24); and
  • Excessive fines for non-compliance with the Bill (e.g., a fine of up to RM10,000 for organizers if no advance notice of assembly is given to the police;25 a fine of up to RM20,000 if participants fail to dissipate when requested by the police26).

These restrictive provisions effectively render meaningless the Malaysian peoples’ constitutional guarantees under Article 10(1)(b) of the Federal Constitution by severely constraining the right to assembly.

On 29 November 2011, the Bill was passed by the Lower House of Parliament with six amendments,27 and on 20 December 2011 it was passed by the Upper House.  It subsequently received Royal Assent on 30 January 2012, and was “gazetted” (in the e-Federal Gazette) on 9 February 2012, effectively becoming law.28 It came into operation on 23 April 2012.

Pending NGO Legislative / Regulatory Initiatives

Amendment of the Sedition Act

On July 11, 2012, the government announced that the Sedition Act will be repealed and replaced with a National Harmony Act. It was reported that the new Act is aimed at finding the best balance between ensuring freedom of expression and the maintenance of harmony in the context of the country's multi-racial and multi-religious society. This announcement was met with caution by civil society, including religious leaders, as other repressive laws recently repealed were replaced with equally restrictive laws, which were enacted with little or no public consultation.

In June 2014, the National Unity Consultative Council (NUCC) released the first drafts of three proposed bills to receive feedback from the public: (1) the National Harmony and Reconciliation Bill (NHRB), (2) the National Harmony and Reconciliation Commission Bill (NHRCB), and (3) the Racial and Religious Hate Crime Bill (RRHCB). The draft National Harmony and Reconciliation Bill would have prohibited the dissemination of discriminatory ideas as well as discriminatory actions, but would make an exception for discrimination that has a “legitimate purpose.” The Commission bill would establish a commission that educates the public on issues of equality and harmony, advises the government on best practices, and investigates complaints of unfair discrimination through a new Unfair Discrimination Tribunal. The Racial and Religious Hate Crime Bill would make it a criminal offence to incite racial or religious hatred.

The NUCC’s Working Committee on Law and Policy has explicitly stated that none of the proposed bills threatened the special position of the Bumiputera (Malay people/race or "Sons of the Land"), and that they instead alleviated any discrimination they may face in society. However, the draft National Harmony Act immediately faced stiff opposition from conservative forces who were concerned that it would not do enough to limit speech on issues of Malay rights, Islam, and Malay rulers.


On November 27 2014, Prime Minister Najib Razak reversed his decision and announced that the Sedition Act will not be repealed and would in fact be fortified in order to protect the sanctity of Islam and other religions and to ban secession of Sabah and Sarawak states from Malaysia. A proposed bill to amend the Sedition Act was then tabled in the parliamentary session in April 2015. Despite strong objections from the opposition members of parliament, the amendment was passed on April 9, 2015. The amended Sedition Act clearly targets social media users by amending the word “publish” to also include words “cause to be published.” The Act makes it an offence to “propagate” seditious publication and creates an “aggravated” offence where the seditious act causes “bodily injury or damage to property.” The amendments also empower the courts to make a “prohibition order” for publications considered seditious and prevent a person charged with sedition from leaving the country. The amended Sedition Act did away with imposing a fine and increases the prison term from maximum three years to three to fifteen years. The amendments are not yet in force.     

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Legal Analysis

Organizational Forms

There are three main legal entity forms for CSOs, namely “societies,” “companies limited by guarantee,” and “trusts.”

Societies are regulated by the Societies Act of 1966. A society is defined as any “club, company, partnership, or association” of a minimum of 7 persons. A CSO can only formally register under the Act if it does not have as its primary purpose the making of monetary gain/profit.

Companies limited by guarantee are governed by the Companies Act of 196553 if its objects are found to be useful to the community. The Act permits a public company with limited liability to be formed for the purposes of providing “recreation or amusement” or “promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to  the community” if it applies its income in promoting its objects.54

In addition, under the Trustees (Incorporation) Act of 1952, a trust may be established for any religious, educational, literary, scientific, social or charitable purpose. The Minister in the Prime Minister’s Department is in charge of deciding whether to issue a certificate of incorporation for each trust. Practically, trusts are difficult entities to administer and tend to work better as vehicles  for the investment of personal/family money for a charitable cause.  NGOs established under a broader mandate, such as those working to advance human rights or to protect the environment, will find the structure of the trust – requiring that each trust must be open to everyone, and at least 50% of trustees must be dissociated from the organization and its founders – too difficult to reconcile in the management of  their day-to-day activities.

Public Benefit Status

Most organizations created for public benefit will be exempt from tax.  These include, among others, the following: public or benevolent institution; society/institution engaged in research for the cause, prevention or cure of diseases, socio-economic research, technical or vocational training; Malaysian religious institution/organization which is not-for-profit and established exclusively for the purposes of religious worship or the advancement of religion; an organization established exclusively to administer a public fund solely for the relief of distress among members of the public; an organization which maintains or assists in maintaining a zoo, museum, art gallery or is engaged in the promotion of culture or the arts; an organization engaged in or in connection with the conservation or protection of animals; and other organizations included in the exemption guidelines of the Ministry of Finance. 

The Ministry of Finance55  is responsible for issuing tax exempt status through the use of statutory orders.  Sections 44(6) and 127, alongside Section 13 of Schedule 6 Part 1, of the Income Tax Act of 1967 govern this status. Applicants must provide detailed information and documentation to the Inland Revenue Board.56 Generally, applicants must provide proof of registration, copies of governing documents, financial statements of the preceding two years, a list of past and future activities, and a supporting letter from the relevant Department/Ministry.

Barriers to Entry

Registration Authorities

The Registrar of Societies (ROS)57 is the regulatory department in charge of the registration, supervision and maintenance of records pertaining to societies and their branches (as well as political parties) throughout Malaysia.  The ROS carries out enforcement activities governed by the Societies Act 1966 (SA 1966).  As of November 30, 2011, there were a total of 47,636 local societies58 and 70,300 branches registered under the ROS nationwide.59 In 2011 alone, the ROS rejected 229 applications for the registration of societies.60

The Companies Commission of Malaysia (CCM)61 registers and regulates all companies in Malaysia, including CSOs registered or incorporated as companies limited by guarantee.62 CCM carries out enforcement activities governed by the Companies Act of 1965 (CA 1965).

Registration Requirements for Societies

Mandatory Registration. The SA 1966 prohibits the formation or operation of unregistered groups.63 The SA 1966 states that committing a breach of the provision and carrying out activities through unregistered organizations will incur a penalty of up to RM5,000 and RM500 for every day of continuing default.64  For example, the Hindu Rights Action Task Force (HINDRAF), which was established in 2005, never registered as a society.65  After several warnings by the government,66 HINDRAF was officially banned on October 15, 2008.  HINDRAF was later declared an “illegal society” under Section 5(1) of the SA 1966, even though it had never been officially recognized as a society in the first place.  Former Home Minister Syed Hamid Albar explained that the group posed a threat to public order and morality in Malaysia and that although their rallies were technically peaceful, the message they carried had actively promoted division between the ethnic Indian community and the Malay-Muslims.67

Eligible Founders. The SA 1966 requires a minimum of 7 founders to establish a society.68 The SA 1966 does not explicitly prohibit the participation of non-Malaysians, but the Registrar may require the office-bearer to be Malaysian under the arbitrary powers afforded by Section 7.69 Minors may be members under the SA 1966,70 but a person under 17 years of age “shall not be a member of the committee, or a trustee, secretary, manager or treasurer of a registered society.”71

Registration Procedures.  At the inaugural meeting the 7 founders must agree on several formalities regarding the formation of the society for which provisions must be made in the constitution of that society,72 including:  name, registered place of business, insignia, aims and objects, and appointed office-bearers.  The founders must then submit an application, with all documents incorporated, to the ROS, for a small fee.73 The ROS sets no fixed time period to decide upon a registration application, and in practice, waiting periods can be excessive.

Grounds for Refusal.  Certain grounds for refusal are drafted in vague language.  Specifically:

  • Under the SA 1966, the Registrar may refuse to register a local society “where it appears to him that the local society is unlawful under the provisions of the Act or any other written law or is likely to be used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare, security, public order, good order or morality in Malaysia.”74
  • The Registrar may also refuse to register a society where “the name under which the society is to be registered (i) appears to the Registrar to mislead or be calculated to mislead members of the public as to the true character or purpose of the society or so nearly resembles the name of such other society as is likely to deceive the members of the public or members of either society; (ii) is identical to that of any other existing local society; or (iii) is, in the opinion of the Registrar, undesirable.”75
  • The Registrar may prescribe other criteria for registration under the wide discretionary powers afforded to him or her under Section 67(2)(a) of the SA 1966, opening the door to a range of possible constraints.

Right to Appeal.  The right to appeal is governed under Section 18 of the SA 1966. Any person who is aggrieved by the decision of the Registrar to cancel registration, refuse registration, prohibit foreign affiliations or the involvement of foreign persons within the society, order amendments to the rules or constitution of the society, or make a provisional order for the dissolution of a society is given 30 days from the date of the decision of the Registrar to appeal against the decision to the Minister.  The Minister/ Head Registrar, whose decision will be final, may confirm, reject or alter the decision of the sub-Registrar.

A notable example of the right to appeal being applied in practice follows the current Home Minister Hishammuddin Hussein’s declaration of the Coalition for Clean and Fair Elections (BERSIH 2.0) as an unlawful society in the run-up to a rally demanding for electoral reforms, organized by the latter on July 9, 2011. Under Section 5 of SA 1966, he argued that the coalition was “being used for purposes prejudicial to the interest of the security of Malaysia and public order.”76 The steering committee for BERSIH 2.0 filed on July 8, 2011 an application for a judicial review at the High Court (Appellate and Special Powers) registry to quash the July 1, 2011 order. Although unsuccessful thus far,77 another opportunity presented itself after, in an apparent change of stance, the same Home Minister said in a recent press conference that the BERSIH 3.0 rally planned for April 28, 2012 would be allowed as it was not a security threat.78 BERSIH quickly submitted, on April 25, 2012, a leave application to cross-examine the Home Minister, the Inspector-General of Police (IGP) Ismail Omar and the senior federal council member Azizan Md Arshad. 

Registration Requirements for Companies

Companies need a minimum of two founding directors who have Malaysia as their principal place of residence.79 They must be between 18 and 70 years of age.80

Under the CA 1965,81 CSOs can be incorporated as private companies by purchasing ‘off the shelf’ companies from private providers (e.g. secretarial firms). They are fully legal and incorporated as private companies which have not carried on any business transaction or activity since their incorporation.82 Alternatively, for a completely new registration, a name search is conducted to determine the availability of the name.83 Incorporation documents84 must be sent to the CCM within three months of the name’s approval. CCM pledges incorporation within one day.85 Anyone dissatisfied with the Registrar’s decision may appeal to the Court within 30 days.86 Under the CA 1965, CSOs have 30 days to submit an appeal to the Court concerning a decision by the Registrar to refuse registration.87

Foreign Organizations

Under the SA 1966, foreign CSOs cannot be registered as societies in Malaysia if they do not fulfill certain requirements. Section 4 criteria specify that different organizational forms will be considered as “established in Malaysia” if (a) a society has its headquarters or chief place of business in Malaysia; (b) any of its office members are residing in Malaysia; or (c) any person who manages, assist or fundraises on the society’s behalf does so in Malaysia.88

Alternatively, foreign CSOs may exist as companies limited by guarantee under CA 1965.89 One limitation, however, is that it requires its two founding directors to have Malaysia as their primary place of residence.90 The procedures for the registration of foreign companies are extremely similar to the standard form of registration (as described above).91

One example of an NGO that faced difficulties in obtaining legal registration is Amnesty International’s Malaysia chapter, which remains unregistered despite numerous applications since 1998. Its sixth application since 1998, filed in 2006, was rejected by the ROS.92

Students

The Universities and University Colleges Act (UUCA) 1971, Section 15, mandates university approval for student associations. However, the Universities and University Colleges (Amendment) Act 2012, which came into force on August 1, 2012, amended Section 15 of the UUCA. The amendments allow students to join political parties and campaign as candidates in elections as long as they are not engaging in political activities on campus. Nevertheless, because the university retains the power to forbid students’ participation in any organization they deem “unsuitable to the interests and well-being of the students or the University,” the true freedom of university students to participate in politics remains somewhat ambiguous.40 In order for the same regulations to apply to students at private higher learning institutions, amendments to section 47 of the Private Higher Educational Institutions Act 199641 and section 10 of the Educational Institutions (Discipline) Act 197942 entered into force in August 2012.

Barriers to Operational Activity

Generally, there is no substantial interference in CSOs’ internal governance.  CSOs are not required by law to notify the government of project activities or internal meetings. However, in order to ensure compliance with relevant Acts, respective authorities are given wide powers that ultimately restrain and burden CSOs in their day-to-day operations.

Constraints on Societies

Under the SA 1966, registered societies must respect core tenets of Malaysian life and government in their activities and affairs, and also in the fulfillment of provisions enshrined in the Federal Constitution, including:

  • The system of democratic governance;
  • The importance of Islam, as well as minority religions;
  • The use of the national language Malay for official purposes;
  • The position of Malay and the natives of the States of Sabah and Sarawak; and
  • The legitimate interest of other communities.93

There is repeated emphasis on maintaining welfare, peace, security, public order and morality in Malaysia throughout the SA 1966, and it is this which acts as a barrier to a registered society’s operational activity.  Under the SA 1966, regulatory authorities hold the statutory power to revoke a registered society’s certificate of incorporation;94  95  suspend all or any activities;96  or seek involuntary dissolution97  if the organization is found to be carrying out unlawful activities or activities incompatible with the provisions of the Act. They may even prohibit registered societies from associating, or even communicating, with foreign persons.98 The ROS may also prohibit the use of illegal or undesirable badges and insignia by registered societies.99

The ROS may search and inspect all books, accounts, minutes or meetings and other documents kept by the society on suspicion of the registered society violating provisions of the SA 1966.100 In cases where there is reason to believe that any registered society is being used for purposes prejudicial to public peace, welfare, good order or morality in Malaysia, the Registrar or police may enter and search the place of business of such society without prior notice and use force in the process.101  They are even granted powers of searching persons suspected of hiding evidence.102 Relevant documents may henceforth be seized and held.103
Registered societies are required within 60 days of holding its annual general meeting (or within 60 days after the end of each calendar year) to provide the ROS with documents relating to new amendments of the rules, list of office-bearers, number of members residing in Malaysia, place of business, accounts, name and address of any affiliated foreign associations, and a description of any money or property received from foreign entities.104  The Registrar may “from time to time by notice under his hand order the registered society to furnish him” all or any of the variety of documents listed above.105 The Act states that a registered society should be given a minimum period of seven days to fulfill that requirement,106 which is a brief period of time and is a major reason why many CSOs are facing de-registration.107

Failure to comply with the SA 1966 will subject registered societies to various penalties.  A fine not exceeding RM2,000 and a term of imprisonment not exceeding six months shall be incurred where a society fails to comply with any of the Registrar’s regulations as conferred to him under Section 67(1).108  A fine not exceeding RM3,000 or a term of imprisonment not exceeding three months shall be incurred for using a sign or emblem without the approval of the Registrar.109  A fine not exceeding RM5,000 shall be incurred for failure to furnish annual reports.110  A fine not exceeding RM3,000 shall be incurred for changing the place or business or rules of the society.111  A fine not exceeding RM15,000 and/or a term of imprisonment not exceeding five years shall be incurred for communicating or affiliating with foreign corporations against the orders of the Registrar.112

Constraints on Companies

Companies limited by guarantee must provide the CCM with annual returns,113 audited accounts and an auditor’s report under the CA 1965.  To ensure compliance with the Act, the Registrar may access the offices of any companies to inspect and make copies of any relevant documentation.114 The Act does not explicitly require notice be given before conducting inspections.115

Failure to hold an annual general meeting shall result in a fine of RM5,000 and a default fine of RM100 for every day of the continuing offence;116  Failure to submit annual returns shall result in a fine of RM2,000,117  while using a company name in business prior to incorporation shall result in a fine of RM50,000 and/or three years of imprisonment.124

Harassment of SUARAM by the Companies Commission of Malaysia

On July 3, 2012, the Companies Commission of Malaysia (CCM) visited the office of Suara Rakyat Malaysia (SUARAM), a leading Malaysian human rights NGO based in Kuala Lumpur, to serve the organization a Notice of Inspection under Section 7B(2) of the Companies Act 1965 to Suara Inisiatif Sdn. Bhd., the company under which SUARAM is registered under the Companies Act.

This followed complaints from the UMNO-linked NGO Jaringan Melayu Malaysia. Its president Azwanddin Hamzah said that SUARAM was registered as a company and not as an NGO, and alleged that SUARAM had collected a revenue of RM 497,137 (approx.$156,101)  in 2009 and RM 411,226 (approx. $129,125) in 2010. The complaint and the subsequent investigations taken against SUARAM appeared to be fueled by the organization’s role in exposing a corruption scandal concerning the sale of two Scorpene submarines by the French company DCN to the Malaysian government.125

The inspection by CCM on July 3, 2012, however, had to be aborted after SUARAM pointed out that the notice served by the Commission was defective and hence, invalid.126 CCM officers once again appeared at SUARAM’s office on the next day, on July 4, 2012. However, SUARAM officials who were authorized to accept the service of CCM’s papers had already left the office. As such, SUARAM was asked to produce the following documents to the office of CCM:

  • Copies of financial documents (2008-2011)
  • Supporting documents related to revenue and other income including bank statements (2008-2011)
  • Supporting documents related to company expenses (2008-2011)
  • Detailed list on administrative expenditures and detailed info on company activities (2008-2011)

Responding to assertions regarding SUARAM’s revenues, its chairman K. Arumugam explained that the amounts came from donations and grants from private organizations and the public. The SUARAM website states as well that: “SUARAM is funded by donations and grants from public and private sources. However, the most important source comes from private donations, local fund-raising events, sales of books and campaign merchandise. Funds are accepted strictly on the basis of non-interference of donors.”

Although CCM has claimed that its actions were merely a “routine check”127, SUARAM condemned the actions taken by CCM as an “attempt by the government to destabilize the organisation through harassment and intimidation tactics”128 to distract attention from the probe in the French courts into corruption allegations implicating the Malaysian government in its Scorpene submarines deal, in which SUARAM is a complainant.129

On September 5, 2012, the CCM seized documents from SUARAM's Company Secretary and auditors notices pursuant to Sections 7C and 7D(1) of the Companies Act 1965 to search, seize and detain documents related to Suara Inisiatif Sdn Bhd.

Then on September 7, 2012, the CCM served notices for investigation pursuant to Section 7D(1) of the Companies Act 1965 to Suara Insiatif Sdn Bhd, requiring several staff and board members of the organization to be present at the CCM office on several dates in September 2012 for questioning.

On September 8, 2012, Domestic Trade, Cooperatives and Consumerism Minister Ismail Sabri Yaakob said that the Companies Commission of Malaysia has identified five charges under the Companies Act 1965 to be made against Suara Insiatif Sdn Bhd.130 The Malaysian government also announced that investigations will be undertaken by several other government agencies, including the Registrar of Societies who has publicly noted that SUARAM is not legally registered as a society.131 However, Deputy Home Minister Wan Junaidi Tuanku Jafar later admitted on July 16, 2013 that because SUARAM is not a society, the Home Ministry had no right to investigate its affairs. To date, no formal charges were brought against Suara Insiatif Sdn Bhd, neither by the Home Ministry nor the Ministry of Domestic Trade responsible for the oversight of companies.

Declarations of the Illegality of CSOs and Deregistration

  • On January 8, 2014, the Secretary General of the Home Ministry declared Coalition of Malaysian NGOs in the UPR Process (COMANGO) an "unlawful organization." The Secretary General said COMANGO was promoting "sexual rights contrary to Islam" and that 15 of its 54 group members were unregistered under the Societies Act. There is concern that the ban is retribution for COMANGO's submission during the second cycle of the UN Human Rights Council Universal Periodic Review (UPR) of Malaysia in October 2013. However, the section of the statement declaring the group illegal was later deleted.
  • Another coalition of over 80 Malaysian NGOs, Negara-Ku, was similarly declared illegal by the Home Minister Ahmad Zahid Hamidi on July 26,2014, as it is not registered with the Registrar of Societies. Negara-Ku has challenged this declaration by interpreting the law as declared by the Kuala Lumpur High Court in overturning a similar declaration regarding Bersih in 2012 as saying that unregistered societies can function if they are “not a threat to national security, public order and morality.” All six members of the Steering Committee of Negara-Ku have been called in by the ROS for investigation under Section 66(1) of the Societies Act:
  • On August 27, 2014 the Chairperson, Zaid Kamaruddin, was brought to the Registrar of Societies to have his statement taken. 
  • On September 17, 2014 Haris Ibrahim, a lawyer and human rights defender, was brought in for investigation.
  • On September 24,2014 both Mustaqeem Mahmod Radhi, a project manager at the think tank Institute for Democracy and Economic Affairs (IDEAS), and Stanley Yong Yew Wei, Secretary General of the Kuala Lumpur and Selangor Chinese Assembly Hall, were brought in for questioning.
  • On September 29, 2014 Jayanath Appudurai was brought in for questioning.
  • On October 3, 2014, Jerald Joseph, board member of KOMAS, was interviewed by the Registrar of Societies.
  • On August 26, 2014, the Inspector General of Police declared Peronda Sukarela (PPS) Pulau Pinan - a group of volunteers formed by the Penang state government in 2011 to assist in public functions such as directing traffic, patrolling streets, and disaster management- illegal because it is not registered with the ROS. On August 31, 2014, Malaysia's Independence Day, 154 members of PPS were arrested after taking part in a parade, arrests which legal experts have deemed to be unlawful.
    On 14 November 2014, the Sarawak Association for People’s Aspiration (SAPA) was declared an unlawful organization by the Home Minister pursuant to Section 5 of the SA 1966 via a government gazette on the opinion of the Minister that “Sapa is being used for purposes prejudicial to the interest of the security of Malaysia and public order.”

Barriers to Speech / Advocacy

Although there is no law that explicitly prohibits CSOs from criticizing the government, advocating politically unpopular causes, or engaging in political or legislative activities,132 civil society activism faces substantial obstacles in Malaysia.

The SA 1966 places legal restrictions on societies in the form of the statutory power to de-register or involuntarily dissolve societies. Societies may be prevented from engaging in certain political activities if considered to be incompatible with the interest of security of Malaysia, public order and/or morality.  Furthermore, laws such as the Official Secrets Act of 1972,134 the Sedition Act of 1948,135 Communications and Multimedia Act of 1998136, and the Printing Presses and Publications Act of 1984137 contain provisions that constrain the societies’ freedom of expression and advocacy activities. Freedom of assembly is highly restricted by laws such as the new Peaceful Assembly Act in 2012 and the Penal Code.  Also, the questionable independence of the judiciary,138 notwithstanding repeated commitments by chief judiciaries,139 has meant that CSOs do not have an independent redress mechanism at times when their space is threatened.

Below are some of the most recent cases of the restriction of CSOs’ freedom of speech and expression, often in the context of assemblies:

Since March 2011, there has been an ongoing campaign by thousands of Malaysians expressing their objection against Lynas Advanced Materials Plant (LAMP), a rare earth processing plant in Kuantan, Malaysia. On June 22, 2014, more than a thousand people assembled outside the rare earth processing plant to protest against the Australian company, Lynas. 16 people were arrested by the police, and it is alleged that the police had used force against some of the participants of the rally, such as brutally kicking and beating them. Of the 16 that were arrested, 15 were released on bail within hours, whereas Sydney-based environmental activist, Natalie Lowrey, was only released unconditionally after being detained for six days. However, on July 8, 2014, of the 15 people that were arrested and released on bail, ten were officially charged for committing unlawful assembly under Section 145 of the Penal Code, which carries a jail term of up to two years, a fine or both, if convicted. They are Chong Kong Yuen, Raymond Ng Abdullah, Hew Kuan Yau, Thomas Wang, Ta Weng Seng, Rapar Ahmad, Lee Khai Ming, Tan Chee Hooi, Zamri Zonal and Himpunan Hijau leader Wong Tack. Another five people have been charged for rioting under Section 147 of the Penal Code, which also carries a jail term of up to two years, a fine or both, if convicted. The five are Phua Kia Yeow, Foong Poh Choo, Wong Chee Wai, Wong Chee Wen and Ho Kam Huat. Ho also faces another charge under Section 353 of the Penal Code for allegedly obstructing the police by kicking Corporal Isaher Azhar Abd Hamid. Besides these charges, a gag order has also been imposed on these 15 activists not to discuss the case on social media as an added condition for their release on bail, apart from having to report to the police station once every month.

Recognition of the landmark judgment in the Court of Appeal in the case of Nik Nazmi vs Public Prosecutor that ruled that Section 9(5) of the Peaceful Assembly Act was unconstitutional in April 2014 was seen on August 24, 2014, when R. Yuneswaran, Johor PKR’s executive secretary, had his lower court conviction overturned for organizing a Blackout 505 rally in 2013. Unfortunately, this positive development was short-lived. On October 1 2015, the Court of Appeal ruled that Section 9(5) is constitutional after the government appealed against the acquittal of R. Yuneswaran by the high court.

Beginning in the summer of 2014 there has been an increase in the use of the Sedition Act to prosecute individuals and quell free speech. At least 19 people have been charged with sedition, including opposition activists, parliamentarians, student leaders, NGO members, human rights lawyers, journalists, academics, and Islamic preachers. The most recent examples are below:

    • Eric Paulsen / human rights lawyer / charged on February 5, 2015. He was charged for a tweet that allegedly criticized the Malaysian Islamic Development Department (Jakim) for spreading extremism via Friday sermons.
    • Jemmy Liku Raty,Erick  Jack William, Joseph Kulis, Azrie Situ / volunteers of Sabah Sarawak Keluar Malaysia (SSKM, Sabah Sarawak Out of Malaysia) / charged on March 16, 2015. They were charged for distributing pamphlets at a local market that allegedly promoted the rights of people in North Borneo and launched a petition to the United Nations declaring that Sabahans are no longer interested in being a part of the Malaysian federation.
    • Zulkifli Anwar Ulhaque - better known as Zunar / cartoonist / charged on April 3, 2015. Zunar was charged with nine counts of sedition for making nine tweets criticizing the judiciary after opposition leader Anwar Ibrahim began serving a 5-year prison sentence over a sodomy conviction.
    • N Gobalakrishnan / former Member of Parliament / charged on September 22, 2015. He was charged for allegedly making remarks about a judge during a speech in relation to a particular case at Chow Kit on July 7, 2015.
    • Abdul Rahim Thamby Chik / former chief minister of Mallaca / charged on October 5, 2015. He was charged with publishing a Facebook post alleging that Selangor Raja Muda Tengku Amir Shah was an apostate.
    • Khalid Mohd Ismath / human rights activist / charged on October 13, 2015. He was charged with three counts of offences under the Sedition Act and 11 counts of offences under the Communication and Multimedia Act for posting comments on social media about the Johor royal family and the abuse of power by police.  
    • Sivarasa Rasiah / Member of Parliament / charged on October 21, 2015. He was charged for allegedly saying during the March 7, 2015 'Kita Lawan' rally that Umno used the judiciary to incriminate Anwar Ibrahim.

    Additionally, there have been four recent convictions under the Sedition Act, of a human rights lawyer, two student activists, and a politician, respectively, for remarks about the government, the judiciary, and religion.

    • The Late Karpal Singh / Human rights lawyer, DAP Chairman / convicted on February  21, 2012. The late Karpal Singh was convicted for having said at his legal firm that that the removal of Mohammad Nizar and the appointment of Datuk Seri Dr Zambry Abdul Kadir as Chief Minister by Sultan of Perak would be questionable in court.
    • Safwan Anang / Student Activist / charged on May 29, 2013 and convicted on September5, 2014. Safwan was arrested along with Adam & others for an alleged speech at an event on 13 May 2013. Safwan was convicted for sedition and sentenced to 10 months imprisonment on September 5, 2014 and was granted a stay of execution pending appeal with a RM15,000 bail.
    • Adam Adli / Student activist / charged on May 23, 2013. Adam was arrested and charged over remarks he made at a public forum on May 13, 2013, where he urged the public to take to the streets to protest against electoral fraud. He was found guilty by the Session Court on September 20, 2014, sentenced to 1 year imprisonment and was granted a stay of execution pending appeal with a RM5,000 bail.
    • David Orok / politician - State Reform Party / charged on September 3, 2014. David was charged for allegedly insulting Islam and Prophet Muhammad on his Facebook page in July 2014, though he subsequently apologized on Facebook, stating that he had no intention of hurting anyone or Islam with his comments. He initially pleaded not guilty. On September 15, 2015 at the Kota Kinabalu High Court, he changed his plea to guilty and was sentenced to 16 months of prison. 

    Over twenty others are being investigated under the Sedition Act.

    Penal Code
    Two amendment acts came into force in recent years that further limit free expression.
    On July 31, 2012, the Penal Code (Amendments) Act 2012 came into force. The amendment bill introduced 13 additional clauses to Section 124 of the Penal Code. It criminalizes activities detrimental to parliamentary democracy, which is broadly defined as “any activity carried out by a person, or a group of persons, or a group, designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.” Sections 124B and 124C state that anyone who is involved in an “activity detrimental to parliamentary democracy” can be imprisoned for a term up to 20 years, while those attempting to do so can be imprisoned up to 15 years. Section 124D, 124E and 124F of the bill state that anyone who prints, publicizes, sells, issues, circulates, reproduces or possesses, or imports any document or publication detrimental to parliamentary democracy can be imprisoned for a term up to 15 years, 10 years, and 5 years respectively. Section 124J of the bill imposes a prison term of 10 years for those who received such documents but failed to deliver them to the police.

  1. Besides offences detrimental to parliamentary democracy, the bill also punishes, among others, offences of sabotage, espionage, dissemination of false reporting, and dissemination of information that incites violence or counsel violent disobedience to the law. The sentence for committing sabotage and attempting to commit sabotage is especially high - life imprisonment and 15 years of imprisonment, respectively. The crime of sabotage was not defined in the bill.

  2. In responding to public concerns that such amendments to the Penal Code would be abused, the then de facto law minister Nazri Aziz declared that the Penal Code would be used to deal with violent offences such as the assassination of a head of state, a coup d’état, an armed insurgency, or guerrilla warfare, and breaches of constitutional provisions.

  3. On December 31, 2014, the Penal Code (Amendment) Bill 2013 came into force. Section 203A was added, making it an offence for anyone to disclose any information or matter which was obtained in the performance of their duties or the exercise of their functions under any written law. The offence is punishable with a fine of not more than RM1 million or with imprisonment for a term of up to one year. It further provides that whoever has any information or matter which to his knowledge has been disclosed in contravention of Section 203A and discloses that information or matter to any other person shall be punished with fine of not more than RM 1 million, or with imprisonment for a term of up to one year, or both.  

  4. With the constitutionality of the Sedition Act being challenged in court in the case of Azmi Sharom at the Federal Court, the police have increasingly used Section 124 of the Penal Code regarding activities detrimental to parliamentary democracy to clamp down on critics of the government. This trend started in July 2015 with two members of parliament, Tony Pua and Rafizi Ramli being probed under Section 124B in relation to allegations that they were involved in the tampering and fabrication of documents related to the 1MDB scandal in order to oust Prime Minister Najib.

    • On July 22, 2015, the owner of The Edge Media Group, Tong Kooi Ong, was investigated by police under Section 124B of the Penal Code for allegedly using falsified documents in their investigative reporting on the 1MDB scandal. The Group’s publisher and CEO, Ho Kay Tat, was also probed under the same Section.
    • On July 31, 2015, Ambiga Sreenevasan, president of human rights organization HAKAM, was called in for questioning under Section 124 for allegedly urging the public to take to the streets to demand the resignation of the prime minister.
    • On August 4, 2015, a warrant of arrest was issued for Claire Rewcastle-Brown, owner of Sarawak Report for offences under Section 124B and 124I of the Penal Code. The Sarawak Report made several news reports to expose the 1MDB scandal.
    • On August 26, 2015, 17 persons, mainly students, were arrested under Section 124B of the Penal Code for staging a sit-in protest outside the parliament.
    • On September 1, 2015, Maria Chin Abdullah, Sarajun Hoda, Masjaliza Hamzah, Farhana Halim, Fadiah Nadwa, Mandeep Singh, and Adam Adli were probed by the police under Section 124C of the Penal Code in relation to the Bersih 4.0 rally in late August 2015 which gathered 500,000 protesters calling for the resignation of the prime minister and for institutional reform. Meanwhile, organizers of Bersih 4.0 in Kota Kinabalu of Sabah - Jannie Lasimbang, SM Muthu, Mathew Yong, Stephen Won and Henry Shim - were probed under Section 124B of the Penal Code.
    • On September 18, 2015, Khairuddin Abu Hassan, former Former Batu Kawan Umno vice-chief-turned-whistleblower, was detained by police while he was on his way to meet with FBI representatives with his lawyer, Matthias Chang, to discuss the 1MDB scandal. He was first detained for investigation under Section 124C of the Penal Code for activities deemed detrimental to parliamentary democracy. On September 23, 2015, he was released and re-arrested immediately under SOSMA to be probed under Sections 124K and 124L of the Penal Code for sabotage and attempting to sabotage the state. On October 12, 2015, he was charged under Section 124L of the Penal Code for attempting to sabotage Malaysia’s financial and banking systems.
    • On October 8, 2015, Matthias Chang, the lawyer of Khairuddin Abu Hassan, was detained by police  and was charged under Section 124L of the Penal Code for attempting to commit “sabotage.” 

      Security Offences (Special Measures) Act 2012 (SOSMA) 29
      Federal Police Chief Tan Sri Khalid Abu Bakar has threatened to use the SOSMA against those who say things which “could worsen the current racial and religious tension.”  The SOSMA replaced the Internal Security Act (ISA) 1960, which provided powers to detain individuals without trial.

      The SOSMA has been strongly criticized by various civil society groups. For example, while Clause 4 of the SOSMA reduces the period of detention without judicial review from the ISA's 60 days to 28 days,33 the absence of judicial scrutiny means the police can use the law to detain anyone under the pretext of active investigation. The law authorizes arrest without judicial warrant based on the subjective standard of "has reason to believe"34 that the person may be involved in security offences. In addition, Clause 5(2) encourages abusive interrogations and the possibility of confession under duress by allowing for a delay of 48 hours before the suspect has access to a lawyer.

      The SOSMA also provides powers to the public prosecutor and the police to intercept communications on suspects, and permits the police to unilaterally impose electronic monitoring devices on individuals released from detention (Clause 6), in deliberate breach of privacy and infringement of the principle that a person is presumed innocent until proven guilty. Furthermore, while the SOSMA purportedly prohibits arrest solely on the basis of "political belief or political activity," the narrow definition of "political activity" under Clause 4(12) of the SOSMA 35 effectively excludes various forms of peaceful political activities, and thus provides no guarantee that it will not be used against activists and human rights defenders. In denying the right to bail for people charged with security offences (Clause 13)36, the SOSMA essentially authorizes the ongoing detention of suspects who have not yet been found guilty. More restrictive are Clauses 14 and 16, which allow the identity of certain prosecution witnesses to be kept from defendants and their attorneys, depriving them of the right to cross-examine the witnesses against them. Finally, the SOSMA specifies that the repeal of the ISA will not lead to the release of current ISA detainees (Clause 32(2)).    

      Evidence Act, 1950
      On July 31, 2012, amendments to the Evidence Act came into force, despite strong criticisms and calls for repeal by rights and media freedom groups16 as well as the Human Rights Commission of Malaysia (SUHUKAM).18 The government deemed the amendments as necessary to protect the security of the state.17  The amendments introduce a new provision, Section 114(A), which holds Internet account holders and intermediaries liable for content published through its accounts/services. Under this provision, if an anonymous person posts content deemed offensive or illegal using another person's Internet account, account holders will be held liable - unless proven otherwise. In other words, the burden of proof is placed on Internet account holders rather than the prosecutor/investigator.15
    • Printing Presses and Publications (Amendment) Act 2012
      Amendments to the Printing Presses and Publications Act (PPPA) entered into force on July 15, 2012, as part of the government’s efforts to improve its public image with regard to respect for civil liberties and media freedom in Malaysia. Most significantly, the requirement for newspapers (among other printing presses and publications) to renew a permit annually has been eliminated,43 while publishers are allowed to challenge in court any decisions by the Home Affairs Minister to revoke or suspend permits under the amended law.44 While this can be seen as a relative improvement for the publishing industry, advocates have argued that the oppressive instruments of press censorship remain largely intact: anyone wanting to publish is still required to apply for a license from the Minister who still has the power to revoke it at any time.45

    • In October 2012, independent online news portal Malaysiakini successfully challenged the Home Affairs Minister's rule that prohibits granting a printing license to the online newspaper, which has been in business for thirteen years. Malaysiakini applied for a publishing permit to publish 40,000 copies daily in Klang Valley on April 2010 under Section 6(1)(a) Act 301 of the PPPA 1984, but had been rejected by the Home Minister in August 2010 on the grounds that the publishing permit is a "privilege", not a right.46 47 Pro-government newspapers and publications such as Utusan Malaysia, New Straits Times, Suara Perkasa have had their licenses renewed.48 The decision to refuse the permit application of Malaysiakini has been met with criticism from various civil society organizations.49 On October 1, 2012, the Kuala Lumpur High Court quashed the Home Affairs Ministry's decision as unconstitutional as it would violate the freedom of expression, which includes a right to a permit.50 It also affirmed that the permission to publish the printed version of the newspaper is a fundamental liberty.51 This ruling is seen as a significant development for freedom of expression and freedom of press in Malaysia.52

Barriers to International Contact

There is no general restriction on the ability of CSOs to communicate and cooperate with colleagues in civil society, business or governments, either within or outside the country.  The law does not require that advance notice be given to the government to travel, participate in networks, or access the Internet.  There are also no special rules concerning foreign funding. 

The broad sweep of SA 1966, however, does open up the possibility of interference with a society’s international affiliations. More disturbingly, the ROS may prohibit a society, through a written order, from having direct or indirect contact with anybody outside of Malaysia, if the ROS is satisfied that such an order is necessary in the interest of public order, safety or security. In more extreme cases, the ROS may compel the registered society to re-draft its governing rules to exclude persons who are not “Federal citizens” from holding office within that society.

The importance the ROS accords these provisions on international contact is reflected by the penalty enforceable in instances of breach: Failure to comply with the Registrar’s order prohibiting communication or affiliation with foreign corporations shall incur a fine of up to RM15,000 (approx. US$5,000) and/or a term of imprisonment of up to 5 years.

The Sedition Act of 1948 further confers on the government the power to restrict international contact by alluding to the need to maintain ethnic and religious harmony. On July 11, 2012, however, the government announced that the Sedition Act will be repealed and replaced with a National Harmony Act. It was reported that the new Act is aimed at finding the best balance between ensuring freedom of expression and the maintenance of harmony in the context of the country's multi-racial and multi-religious society. As of November 2014, three bills which are set to replace the Sedition Act are being drafted by the National Unity Consultative Council (NUCC), with input from stakeholders and interested members of the public.

Since 2011, scores of individuals, mainly human rights defenders, from Peninsular Malaysia have been barred from entering the East Malaysian states of Sabah and Sarawak. In September 2012, the activist Mohammad Fahmi Reza Mohammad Zari, responsible for the Occupy Dataran movement, was denied entry into Sarawak. Bersih 2.0 steering committee chairmembers Maria Chin Abdullah and Ahmad Syukri Che Ab Razab were denied entry to Sarawak and Sabah in March and October 2012, respectively. The co-chair of Bersih, Ambiga Sreenevasan, was also listed in a government document as a person barred from entering Sabah in 2013. Prominent members of the political opposition, such as former PR vice-president Nurul Izzah Anwar and current VP Tian Chua have repeatedly been denied entry into Eastern Malaysia, with Nurul Izzah barred from Sabah in 2013 and Tian Chua from both Sabah and Sarawak in 2013 and 2014. These entry restrictions have been invoked under the autonomy powers over immigration controls of Sabah and Sarawak within the borders of the two respective states. Their autonomy over immigration is a result of an agreement achieved when they joined the other states in Peninsular Malaysia to form the Federation of Malaysia in 1963. Also, in the run-up to the 2011 state-level election in Sarawak, several activists were barred from entrance into Sarawak. They include, among others, Ambiga Sreenevasan (Chairperson of electoral reforms advocacy group, BERSIH 2.0), Wong Chin Huat (another activist from BERSIH 2.0), and Haris Ibrahim (human rights lawyer, who is also involved in BERSIH 2.0’s activities). Malaysian human rights organization SUARAM compiled a list of individuals who have been banned from entering into Sarawak since the 1990s. SUARAM’s list includes a number of civil society key activists who had campaigned against the construction of a mega dam in Sarawak since the mid-1990s. (See SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Political Rights. Petaling Jaya, Malaysia: SUARAM Kommunikasi.)

Barriers to Resources

While there are no legal constraints on the ability of CSOs to seek and secure funding, other than those set out in the Anti-Corruption Act of 1997 or Anti-Money Laundering Act of 2001,187 CSOs receiving foreign funds are often demonized by both the government and the government-controlled media as being “foreign agents.” A notable example of this occurred in the run-up to a mass rally demanding electoral reforms in July 2011, when BERSIH 2.0, the organizer of the rally, was accused by Utusan Malaysia, a Malay-language newspaper owned by the ruling-UMNO, of being backed by “foreign agents.” The newspaper further suggested links between BERSIH 2.0 and opposition political parties, whom Utusan Malaysia claimed “would resort to any means, including working with foreign countries, to cause chaos.”188  In response, the Inspector-General of Police announced that BERSIH 2.0’s foreign funding and its alleged plan to cause chaos would be investigated.189 He also noted that the police had information that “foreign elements were out to create chaos” in Malaysia.190 BERSIH 2.0 was subsequently declared an unlawful society by the government.

In July 2012, human rights group SUARAM, legally registered as Suara Inisiatif Sdn Bhd under the Companies Act, has been subjected to a public vilification campaign by the government-controlled media as well as threats of legal charges by the government for allegedly collecting funds from various sources, while not engaging in trade.191  On September 7, 2012, the German embassy in Malaysia was criticized by the government following the embassy's admission that it has funded SUARAMt.192 See also Harassment of SUARAM by the Companies Commission of Malaysia

On September 21, 2012, the newspaper New Straits Times, in a front page article, alleged six Malaysian NGOs (including SUARAM)193 were being mediators of foreign agents who "plot to destabilize the government."194 The six NGOs demanded an apology and retraction of the article otherwise promising to take a legal action against the newspaper.195 The parties were eventually able to reach an out-of-court settlement, and on November 15, 2013, the New Straits Times published a half-page apology admitting that they “had no proof whatsoever to substantiate any of the said allegations” and therefore should not have published the piece. Online news portal Malaysiakini has also been accused in the media for receiving funds from international organizations who allegedly use the news portal as a platform in promoting their foreign agenda. 196 197

On October 13, 2012, a Minister in the Prime Minister's Department, Datuk Seri Mohamed Nazri Aziz, reportedly said that laws to prevent interference in the country's affairs and national security should be considered. However, on October 15, 2012, the same minister stated that there is no need for the enactment of new legislation to regulate foreign funds, citing that existing laws are sufficient to deal with "the spread of subversive foreign influence", such as the then newly-enacted SOSMA.

Barriers to Assembly

Article 10(1)(b) of the Federal Constitution states that “all citizens have the right to assemble peaceably and without arms.”

The Peaceful Assembly Act 2012 (“PAA”) regulates the holding of assemblies in Malaysia. An “assembly” is defined under the PAA as an “intentional and temporary assembly of a number of persons in a ‘public place’, whether or not the assembly is at a particular place or moving.” Under Section 3, a public place is defined as follows:
(a) a road
(b) a place open to or used by the public as of right, or
(c) a place for the time being open to or used by the public, whether or not-
(i) the place is ordinarily open to or used by the public
(ii) by the express or implied consent of the owner or occupier, or
(iii) on payment of money.

Restrictions on Organizers and Participants
Article 10(1)(b) of the Federal Constitution states that “all citizens have the right to assemble peaceably and without arms.” Thus, the right to assemble is unavailable to foreign citizens and non-citizens. Indeed, Article 4(2) expressly prohibits any non-citizen from participating in or organizing any assembly. For example, Australian Senator Nick Xenophon was arrested and deported from Malaysia for violating the PAA during the Bersih 3.0 rally.

In addition, anyone below 21 years of age is prohibited from organizing assemblies and anyone less than 15 years of age is not allowed to participate in assemblies.

Advance Notification
The PAA stipulates that: “Notice of an assembly must be given to the police within 10 days before the assembly date.” The police are required to respond within 5 days. Under section 16(1) of PAA, the organizers may appeal within 48 hours if they do not agree with the restrictions and conditions imposed by police. There is no exception for spontaneous demonstrations.

Time, Place and Manner Restrictions
The PAA states in Section 4(1) that the right to assemble does not encompass a “street protest” and that a “street protest” is illegal. However, the definition of “street protest” is unduly broad; Section 3 defines a street protest as an “open air assembly, which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing a particular cause or causes.”

Additionally, participating or organizing an assembly at a prohibited place or within fifty meters from the limit of a prohibited place (such as a “public road”) is considered an offence under the Protected Areas and Protected Places Act, 1959, which was amended in 2006. This Act states that "any area if it appears to the Minister to be necessary or expedient that special measures should be taken to control the movements and conduct of persons therein he may by order declare the area to be a protected area for the purposes of the Act." This severely restricts available venues where assemblies can be held.

Furthermore, Sections 6 and 7 of the PAA state that neither organizers nor participants may perform any act or make any statement which has a “tendency” to promote “feelings of ill-will or hostility amongst the public at large or do anything which will disturb public tranquility.” The vagueness of terminology invites the exercise of arbitrary government discretion.

The Penal Code also regulates freedom of assembly in a broad and vague manner. Section 141 of the Penal Code defines any assembly of five or more persons as an “unlawful assembly”, if the common object of the persons composing that assembly is:

  • To overawe by criminal force, or show of criminal force, the Legislatives or Executive Government of Malaysia or any State, or any public servant in the exercise of the lawful power of such public servant; or
  • To resist the execution of any law, or of any legal process; or
  • To commit any mischief or criminal trespass, or other offences.
  • A person who is convicted for participating in an illegal assembly is subject to imprisonment for a term which may extend to six months, or to a fine, or to both. Those who join or continue in an unlawful assembly, knowing that such unlawful assembly has been ordered in the manner prescribed by law to disperse, will face imprisonment of up to two years, or a fine, or both. The owner or occupier of land on which an unlawful assembly is held is also subject to punishment of a fine of not more than RM2,000. 

  • On October 21, 2015, Jannie Lasimbang, a member of the Bersih 2.0 Steering Committee, was charged under the Peaceful Assembly Act 2012 for not notifying the police on the Bersih 4.0 rally held on August 29-30, 2015 in Kota Kinabalu, Sabah.
  • On November 3, 2015, Maria Chin, the Chairperson of Bersih 2.0, was officially charged for organizing the Bersih 4.0 rally on 29-30 August 2015 without giving 10 days’ notice to the police, allegedly in violation of the PAA.

    Excessive Force
    Malaysian authorities have used excessive force in response to public demonstrations. For example, in April 2012, Bersih 3.0, a coalition of NGOs fighting for clean, free and fair elections, led the largest public demonstration in Malaysian history. More than 200,000 people took to the streets to demand electoral reform. In the days before the rally, a court order declared Dataran Merdeka, (Independence Square) where the rally was to be staged as a ‘no-go-zone’. As peaceful protestors approached the square, the police and Federal Reserve Unit opened fire with tear gas and chemical-laced water cannons in an attempt to ‘kettle’ the protestors. There is overwhelming evidence that tear gas canisters were fired directly at individual protesters, contrary to international standards. A total of 909 tear smoke shells were used against demonstrators and a total of 525 people were arrested. In addition, on May 23, 2012, the Malaysian government initiated a civil suit against human rights advocate Ambiga Sreenevasan and nine other Bersih 3.0 steering committee members for damages allegedly caused during the Bersih rally.

    More recently, police were alleged to have responded violently to the protests held to prevent the demolition of Kampung Hakka (Mantin, Negri Selimban) on September 31, 2013. In addition to arresting 12 villagers and physically assaulting others, an opposition party MP who was also present, DAP member Anthony Loke, was unnecessarily subjected to the type of processing normally reserved for criminals during his arrest. Loke was handcuffed, photographed, fingerprinted, and had his urine and DNA tested.

Additionally, protests began in September 2013 against the building of Murum Dam without proper consultation and compensation of Penan communities in Sarawak. These protests led to numerous arrests, the prolonged presence of riot police, and the firing of gunshots over the heads of protesters. The Penan demonstrations lasted for 77 days but were eventually abandoned in December of that year.

On June 22, 2014, more than one thousand people participated in the “Shut Down Lynas” rally in Gebeng, Kuantan. The police cordoned off the plant and stopped the protesters from marching to the plant. A total of 16 activists were arrested and one Sydney based environmental activist was remanded for five days before being released. The police were accused of using force unnecessarily and excessively in dealing with peaceful protesters. One protester said the police used iron knuckles while beating them. Many witnesses also revealed that protesters were beaten up in police truck by police officers despite already being handcuffed from behind and defenseless. One protester suffered serious injuries and was admitted to the ICU and was later diagnosed for “celebral concussion”.   

Mass Arrests
Several arrests of protesters occurred in 2015 on the grounds of participating in an illegal assembly and being involved in activities detrimental to parliamentary democracy:

  • On March 25, 2015, at least 79 people were arrested on the ground of disobeying the order of the police to disperse after a large crowd gathered at the Custom Department office in Kuala Lumpur to pose 106 questions about the Goods and Services Tax (GST) in protest. On May 1, 2015, at least 59 were arrested while participating in a protest on the same issue.
  • On August 1, 2015, more than 31 persons were arrested for taking part in a #TangkapNajib (#ArrestNajib) protest near Sogo and Jalan Tuanku Abdul Rahman.
On August 25, 2015, police arrested 17 persons, 16 of whom were reportedly university students, for participating in a peaceful sit-in outside the Parliament to demand the resignation of the prime minister over the 1MDB scandal.

See also the "Barriers to Speech / Advocacy" section for additional examples of restrictions that affect the freedom of assembly.

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Reports

UN Universal Periodic Review Reports

4th Session 2009

Reports of UN Special Rapporteurs

Malaysia

USIG (United States International Grantmaking) Country Notes

Not available

U.S. State Department

2014 Country Reports on Human Rights Practices

Fragile States Index Reports

Foreign Policy: Fragile States Index 2015

IMF Country Reports

Malaysia and the IMF

International Commission of Jurists

Not available

International Center for Not-for-Profit Law Online Library

Malaysia

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News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change.  If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

General News

Sabah demo activist charged for not ‘notifying’ cops (October 2015)
Bersih 2.0 announced in a statement, that its Sabah Chairperson Jannie Lasimbang was charged in the Magistrate’s Court in Kota Kinabalu on Wednesday for not giving the police ten days notice, as required under the Peaceful Assembly Act 2012, for gatherings held in Kota Kinabalu recently. Lasimbang is the first activist to be charged for the Bersih 4 gatherings in the Sabah capital on August 29 and 30. The gatherings were part of similar affairs in 70 cities worldwide including Kuala Lumpur and Kuching. She was charged under section 9(5) of the Act, disclosed Bersih 2.0 Steering Committee Chairperson Maria Chin Abdullah.

Federal Court rules Sedition Act constitutional, UM’s Azmi Sharom to stand trial (October 2015)
Universiti Malaya law lecturer Dr Azmi Sharom lost today his constitutional challenge against the Sedition Act 1948 and will have to stand trial for issuing an allegedly seditious remark.  It also ruled that Section 4 of the Sedition Act under which Azmi was charged is constitutional. On September 2 last year, Azmi pleaded not guilty to the principal charge under Section 4(1)(b) and an alternative charge under Section 4(1)(c) of the Sedition Act 1948 at the Kuala Lumpur Sessions Court for a remark he made in an article published on Malay Mail Online. Section 4(1)(b) covers “uttering any seditious words” while Section 4(1)(c) deals with individuals who publish seditious publications, among other things. If convicted under either charge for his quotes in the article titled “Take Perak crisis route for speedy end to Selangor impasse, Pakatan told”, the UM associate professor could face a maximum fine of RM5,000, a maximum three-year jail term or both.

Court backtracks, now says punishing rally organisers legal (October 2015)
The Court of Appeal today ruled that Section 9(5) in the Peaceful Assembly Act 2012 (PAA) that punishes organisers for holding assemblies with fines of up to RM 10,000 is constitutional. This follows a ruling in April 2014 from the same court, in which Section 9(5) was deemed unconstitutional.

Khairuddin rearrested under Sosma moments after court orders his release (September 2015)
Former Batu Kawan Umno deputy chief Khairuddin Abu Hassan has been rearrested by the police, moments after he was released by the court at the Jalan Duta Court Complex. Khairuddin, who filed reports against 1Malaysia Development Bhd (1MDB) in several countries, was rearrested under the Security Offences (Special Measures) Act (Sosma). He can be detained without trial for up to 29 days under the Sosma act.

Cops arrest former Umno man after barring him from leaving country (September 2015)
Former Umno leader Khairuddin Abu Hassan was arrested by police this evening, just hours after posting on Facebook that he is being investigated for submitting evidence related to 1Malaysia Development Berhad (1MDB) to the Swiss attorney-general in Bern, Switzerland.  Khairuddin is being investigated for attempt to commit activity detrimental to parliamentary democracy, a charge under the Penal Code.

1MDB critics Tony Pua and Rafizi barred from leaving country (July 2015)
DAP's Tony Pua and PKR’s Rafizi Ramli, who have been vociferous in their criticism of 1Malaysia Development Berhad (1MDB), have been barred by immigration authorities from leaving the country. "They stopped me and told me I can't go aboard. They said the instructions came 'from above'. No reasons were given why I was prevented from leaving," he told The Malaysian Insider when contacted.

Changes to Sedition Act passed after heated debate (April 2015)
The amendments, which critics said would make the law more draconian, were passed by a vote of 108 to 79. Among other changes, the amendments would among others remove criticism of the government or the administration of justice as something seditious, and make promoting hatred between different religions an offence. The amendments also do away with fines, with a jail term of between three and seven years, as well as up to 20 years imprisonment for seditious acts or statements that lead to bodily harm and property damage. There is also no leniency for first time and youthful offenders, who can be automatically slapped a minimum three-year sentence. The act now empowers the court to order the removal of seditious material on the internet.

Cartoonist Zunar charged with nine counts of sedition (April 2015)
Cartoonist Zunar has claimed trial to nine charges of sedition for allegedly insulting the judiciary in tweets made regarding Datuk Seri Anwar Ibrahim's conviction in the Sodomy 2 case. The tweets contained commentary of the proceedings on the day, and mentioned the Chief Justice and Palace of Justice. The charges were broken up into three sets of three charges each, to reflect that the tweets were treated as separate transactions. As such, Zulkiflee could be jailed consecutively for each of the three "transactions", if found guilty. The charges under Section 4(1)(c) of the Sedition Act are punishable by up to three years prison and a fine of up to RM5,00.0

Banned Sarawak NGO takes Home Minister to court (January 2015)
The Sarawak Association for Peoples’ Aspiration (Sapa), which has since been banned by the Home Minister, is seeking a judicial review to reinstate its status. Counsel Dominique Ng, who is representing Sapa, said the banning order was a serious matter of public interest as it struck at freedom of speech and expression, and freedom of association, the very tenets of democracy and fundamental civil liberties guaranteed in the Federal Constitution.

In campaign to defend democracy, U.S. should start with Malaysia (November 2014)
At the United Nations in September, President Obama, citing "relentless crackdowns" around the world against dissent and civil society, promised "an even stronger campaign to defend democracy." One of the most urgent campaigns should be in Malaysia, a U.S. ally that has launched an extraordinary crackdown on opposition leaders, academics and journalists. In the past two months, the government of Prime Minister Najib Razak has charged nearly two dozen activists under a colonial-era sedition law that mandates three years in prison for acts that "excite dissatisfaction" with the government. Mr. Najib promised as recently as 2012 to repeal the law; instead, the government is prosecuting critics merely for speaking out, publishing articles or uploading videos.

Penang PPS an illegal organisation, says police (August 2014)

"With this latest development, PPS is viewed as an illegal society under Section 41 of the Act," he said via a press statement. "We will conduct a thorough investigation into the activities of PPS and take the appropriate action in accordance with the law." On August 17, a brawl occurred between a group of PPS members and social activist Ong Eu Soon, 51, in Penang. Ong alleged that he was assaulted by PPS in front of the Bandar Baru Air Itam market after a Hungry Ghost Festival dinner. .PPS members Lee Yew Kuen, 66, and Lee Chan Kwong, 35, later lodged police reports against Ong, claiming that he was the aggressor, not them. Following the incident, Penang MCA Youth chief Michael Lee Beng Seng urged the Home Ministry to check on PPS' legality.

Clause protecting LGBT community may be dropped due to political pressure (July 2014)

Political pressure may see the lesbian, gay, bisexual and the transgender (LGBT) community faced with continued discrimination. A sexual orientation and identity clause may be dropped in the proposed National Harmony Bill, which prohibits unfair discrimination on grounds of gender. The National Unity Consultative Council (NUCC) deputy chairman Lim Chee Wee, who heads the council's law and policy committee, said that this was due to immense political pressure from several political parties.

Anti-Lynas Activists Charged with Illegal Assembly (July 2014)

The Sessions Court in Kuantan imposed a gag order on 15 anti-Lynas activists who have been charged with illegal assembly and rioting. Sessions judge Zainal Abidin Kamarudin imposed the gag order on them not to discuss the case on social media as an added condition for their release on bail, besides having to report to the police station once every month.

National Harmony Law violates "Rukunegara" with Tolerance of Atheists (June 2014)
The National Unity Consultative Council's (NUCC) proposed anti-discrimination law contravenes the Rukunegara's principle of belief in God by recognising atheism, a coalition of Muslim groups have said. In a column in Malay newspaper Mingguan Malaysia, Muslim leader Azril Mohd Amin noted that the NUCC's National Harmony and Reconciliation Bill 2014 defined "religion" as "any religion and includes any belief or lack of a religious belief", which he said would include atheists and the freedom to renounce a faith. "This clearly contradicts the Rukunegara's first principle, which is belief in God," Azril wrote. The Rukunegara, or National Principles, are a set of five values introduced after the 1969 race riots to foster unity among Malaysians.

Cabinet Receives First Draft of National Harmony Bill (May 2014)

The National Harmony Act was announced by Prime Minister Razak in July 2012 as the replacement for the Sedition Act 1948. Although the initial version of the bill has now been presented to the cabinet, government representatives insist that the legislation needs to be reviewed and revised further to account for both Malaysia’s unique societal composition and also similar laws enacted by neighboring Singapore and the United Kingdom.

Attorney General Seeks to Reinstate Charges against Nik Nazim Nik Ahmed (May 2014)
Disregarding the judicial precedent set by the Court of Appeals ruling in April 2014, the Attorney General’s Chambers has notified Nik Nazim Nik Ahmed that he will once again be charged under Section 9(5) of the Peaceful Assembly Act 2012. Despite outcry at the unorthodox nature of this decision, Nik Nazim is currently awaiting word of when he is due to appear in court once more.

Application to Dismiss Additional PAA Charges Fails (May 2014)
Even though Section 9(5) of the Peaceful Assembly Act 2012 was found to be unconstitutional in the case against Nik Nazmi Nik Ahmed, an application by Badrul Hisham Shaharin to have identical charges given under the same circumstances as Nik Nazmi was dismissed by the Sessions Court. The inconsistency in the application of the historic court ruling made in April 2014 may indicate the PAA’s role in restraining the activities of civil society organizations in Malaysia is not entirely finished.

Police cannot penalise organisers and participants for non-compliance in assemblies (April 2014)
The Court of Appeal struck out the charge against Selangor's deputy speaker Nik Nazmi Nik Ahmad who was charged under the Peaceful Assembly Act for failing to give police a 10-day notice for a rally in 2013. A three-man bench also ruled in a unanimous decision today that Section 9(5) of the Peaceful Assembly Act (PAA), which provides for punishment for failure to give 10-days notice to the authorities before a protest, was unconstitutional.

Home Ministry ban signals crackdown on civil society (January 2014)
Representatives of the Coalition on Malaysian NGOs in the UPR Process (COMANGO), which the Home Ministry recently declared illegal, said the ban was government harassment on civil society organizations that were attempting to address discrimination issues, especially those advocating the rights of religious minorities. "This is a crackdown to harass civil society, to stop them from speaking on issues relating to religion, to avoid people from continuing to address issues relating to human rights," Suaram executive director Yap Swee Seng told The Malay Mail Online. The Home Ministry banned COMANGO, alleging the majority of the organisations under its umbrella were un-Islamic and unregistered. In its statement, the Home Ministry said COMANGO was promoting sexual rights contrary to Islam and that only 15 out of its 54 groups were legally registered. The coalition, which plans to sue the Home Ministry, is made of 54 NGOs, which also includes women's rights group Sisters in Islam, Amnesty International Malaysia, Centre for Independent Journalism and Tenaganita.

Ministry may create laws to monitor foreign funds of NGOs (December 2012)
The Domestic Trade, Cooperatives and Consumerism Ministry does not dismiss the possibility of creating special laws to monitor the channeling and entry of foreign funds to non-governmental organizations (NGO) and companies in the country. The new laws may require NGOs or any company receiving foreign funds to declare the amount received and its usage.

Pro-govt mega NGO rally on Nov 24 (November 2012)
In an apparent attempt by the government to reach out to the NGOs and civil society movements, a mega rally themed as “Himpunan Barisan Malaysia” is planned to be held on Nov 24.

Najib signs ASEAN’s first human rights convention (November 2012)
Prime Minister Datuk Seri Najib Razak signed ASEAN’s first human rights declaration (AHRD) in Cambodia today, officially committing Malaysia to its first foreign convention to promote fair treatment of every individual irrespective of race, religion and political opinion.

MP proposes law to restrict foreign funding of NGOs (October 2012)
An MP proposed that the government formulate legislation to control the entry of foreign funds through non-governmental organizations. Datuk Ibrahim Ali (Pasir Mas) said such legislation, similar to the Foreign Agents Registration Act (FARA) applied in the United States, would compel all NGOs to record and declare to the Registrar of Societies (ROS) funds received from local or foreign sources.

Tax laws for charity - A re-examination is needed (September 2012)
Yeo Eng Ping of Ernst & Young writes an opinion article on tax breaks for charities in Malaysia. He says that such tax breaks empower individuals and corporations wishing to play the role of donor and limitations on tax breaks have the opposite effect.

Forty percent of government funding for NGOs diverted as 'Commission' in political corruption scandal (September 2012)
The People's Justice Party-linked pressure group Solidariti Anak Muda Malaysia has given the Malaysian Anti-Corruption Commission documented evidence of kickbacks involving a Federal government department and high-ranking political party leader.

Malaysia seeks explanation over German funds to NGO (September 2012)
Malaysia has summoned the German ambassador to explain why his country provided funds for a project linked to a Kuala Lumpur-based NGO human rights group, which the government considers politically-biased. Malaysian Foreign Minister Anifah Aman said the funding could be "seen as interference in the domestic affairs of a sovereign state" because the Malaysian government considers rights group Suaram to be politically-biased. The German Embassy has admitted contributing funds to Suara Inisiatif Sdn Bhd, a company linked to Suara Rakyat Malaysia (Suaram), a non-governmental organisation (NGO).

Human rights groups urge Malaysian government to end harrassment against SUARAM (September 2012)
Asian and international human rights groups have urged the Malaysian government to end the harassment against SUARAM. The Joint Press Statement begins: We, the undersigned national, regional and international human rights organizations express our strongest protest against the Malaysian government’s ongoing harassment of Malaysia’s leading human rights organization, Suara Rakyat Malaysia (SUARAM)...

'Suaram funded by foreign countries, states and donors' (August 2012)
Suara Rakyat Malaysia (Suaram) director Dr Kua Kia Soong yesterday revealed that the non-governmental organisation had been receiving funds from foreign countries and individuals nationwide. He said Suaram, a human rights group, was being funded by several countries, namely the United States, Finland and Canada, as well as some state governments of Malaysia and donations from individuals.

National Harmony Act to replace Sedition Act (July 2012)
Prime Minister Razak announced that The Sedition Act 1948 will be repealed and replaced with a new National Harmony Act as part of the country's political transformation plan, Najib said the decision to replace the Sedition Act was made to find a mechanism to determine the best balance between ensuring every citizen's freedom of expression, and the need to handle the complex nature of the country's multi-racial and multi-religious society. He also announced that recent amendments to laws as well as new laws relating to civil liberties would be implemented immediately.

Expert discusses the new Assembly Act (July 2012)
Shad Saalem Faruqi reflects on the changes in the Law on Assembly.

NGOs demand UN sanctions against Malaysia over Taib crimes (June 2012)
Malaysian government criticized for unlawfully protecting Sarawak Chief Minister Taib Mahmud from criminal prosecution. In a letter to UN Secretary General Ban Ki-moon, 21 NGOs from nine countries are calling on the United Nations to impose sanctions against Malaysia for the country's systematic breach of its obligations under international anti-corruption and anti-money-laundering treaties.

Legal action against Bersih sparks renewed scrutiny of new assembly law (May 2012)
The use of the Peaceful Assembly Act (PAA) to claim damages from organisers of the April 28 Bersih rally has sparked condemnation from opposition politicians who are now claiming that the new law restricts the right to gather even more than previous legislation.Yesterday, 10 Bersih leaders, including Datuk Ambiga Sreenevasan, became the first persons to be sued in a civil action under the PAA, introduced just days before the April 28 demonstration for free and fair elections.The government is claiming RM122,000 for alleged damage to 15 government-owned vehicles.

Malaysian opposition leader Anwar and ally to be charged (May 2012)
Malaysia's leading opposition leaders Anwar Ibrahim and Azmin Ali could become the first to be charged under a new law on public protests, for their participation in a recent demonstration demanding electoral reforms in the country.The two are expected to be charged for breaching a court order barring the public from entering the Independence Square in the downtown area during an April 28 demonstration by an NGO, Bersih, demanding fair elections.A section of the demonstrators had crossed the barricades and entered the square, leading to arrests, firing of teargas and water cannons.

NGO willing to provide security for Ambiga (May 2012)
Amidst reports that Bersih 3.0 chairperson S Ambiga’s house will continue to be targeted by certain quarters, a NGO has offered to provide her with around-the-clock security. Since the police and Kuala Lumpur City Hall (DBKL) were not offering her protection, Persatuan Kebajikan Sosial Gemilang Puchong president V Rameshwaran said he was prepared to mobilise his men for the task if requested.

International news and Malaysia's censors (May 2012)
In Malaysia, the international television news you watch may not be the same television news watched across the rest of the world. It appears that the major broadcast networks beamed into the country including BBC, CNBC, Australian Broadcasting, Al Jazeera and other international news feeds are put on a five-minute tape delay while electronic devices scan the broadcasts for objectionable keywords, including the name of the opposition leader, Anwar Ibrahim.

Malaysians trust NGOs, businesses more (February 2012)
Non-governmental organisations (NGOs) and businesses have earned a high level of trust among Malaysians, but the government and media do not fare so well.The inaugural 2012 Edelman Trust Barometer for Malaysia revealed that 58% of the population trusted both institutions in doing what is right, versus only 52% and 46% respectively for government and media.The survey conducted over a sample of 1,000 general and informed Malaysian public respondents indicated that nearly seven out of 10 Malaysians trust NGOs in doing what is right.

This report was prepared by ICNL’s NGO law monitoring partner in Malaysia, the Asian Forum for Human Rights and Development (FORUM-ASIA).

Footnotes

1Malaysia, Population and Housing Census (2011) Population Distribution and Basic Demographic
 Characteristics 2010. Putrajaya, Malaysia: Department of Statistics.

2 Art.10(1) Subject to Clauses (2), (3) and (4) every citizen has the right to freedom of speech and expression;

  • all citizens have the right to assemble peaceably and without arms; all citizens have the right to form associations.

3 Art.10(2)(a-c). Restrictions on the right to form associations may also be imposed by any law relating to labour or education (Art.10(3) of the Federal Constitution).

4Sedition Act Won’t Be Repealed”, Free Malaysia Today, 9 April 2012; "Law to eliminate hate crimes put on hold", Malaysiakini, 11 Apr.2012

5 Federal Constitution, Art.10(1)(b)

6 Police Act 1967, s.27(5)

7 Trade Unions Act 1959, s.27

8 Trade Unions Act 1959, s.28

9 Legal Profession Act 1979, s.46A(1)

10 Amendment of Section 2 includes part-time and graduate students, who were previously exempted, under the ambit of the Act.

11 Amendment 8, Section 15(1)

12 Amendment 8, Section 15(2)

13 Amendment 8, Section 15(5)(a)

14 Amendment 8, Section 15(5)(c): power to decide which organizations students are banned from joining; amendment 8, Section 12(2): power to “amend, vary or revoke” a campus order if he deems fit.

15 "An Act to amend the Evidence Act 1950"

16 See for example, "Press release: Repeal section 114a of the Evidence Act 1950", The Malaysian bar, 13 August 2012

17 "Nazri: Section 114a stays, for nation's security", The Star, 23 August 2012

18 "Review 114a, rights group demands", The Malaysian Insider, 26 August 2012

19 Peaceful Assembly Act 2012, s.3

20 Peaceful Assembly Act 2012, s.4(1)(c)

21 Peaceful Assembly Act 2012, s.4(1)(b). Se also Explanatory Statement, Part II, s.3

22 Peaceful Assembly Act 2012, s.4(1)(d). See also Explanatory Statement, Part II, s.3

23 Peaceful Assembly Act 2012, s.4(1)(e). Under s.3 "a child" means a person below the age of 15 years. See also Explanatory Statement, Part II, s.3

24 Peaceful Assembly Act 2012, s.6(2)(b) and s.7(a)(iii)

25 Peaceful Assembly Act 2012, s.9(5)

26 Peaceful Assembly Act 2012, s.21(3)

27 These include changes to:

  • Section 9(1), where the 30-day notice period required to be given to the police was changed to 10 days.
  • Section 12(b), where objections against a proposed assembly must be lodged with the police in writing within 48 hours, instead of five days.
  • Section 14, where the police has to provide a reply to organizers on their application for a proposed assembly within five days instead of 12.
  • Section 16(a), where an appeal against the rejection of an application or the exercise of police discretionary orders to organizers can be done within 48 hours of receipt, instead of four days.
  • Section 16(b), under which the Home Minister is to answer any appeals within 48 hours of receipt instead of six days.

28 Peaceful Assembly Act 2012

29 Security Offenses (Special Measures) Bill 2012 and adjoining bill that amends the Penal Code

30 Both the ISA and the EO provide powers to the government to detain individuals without trial for an initial period of 60 days, after which a two-year detention order can be issued by the Minister of Home Affairs. The two-year detention order can be renewed by the Minister indefinitely.

31 Notable examples include: the use of the ISA to detain 107 civil society activists and opposition leaders in 1987 at a time when the ruling UMNO was facing an internal crisis, which subsequently resulted in a major split in the party and its deregistration; the arrests of activists involved in the Reformasi movement, which saw popular protests against the government following the sacking of then-Deputy Prime Minister Anwar Ibrahim in 1998; the detention of 5 HINDRAF leaders in 2007 following the mobilization of over 30,000 Malaysians of Indian descent in a public demonstration in protest of the government’s marginalization of their community; and most recently, the arrest of six leaders of the Socialist Party of Malaysia in the run-up to a mass rally demanding for electoral reforms in 2009.

32 The Bill will have no go through the Upper House (Senate) (although context is highly unlikely), receive royal assent and be published in the e-Federal Gazette before effectively becoming new law.

33 Security Offences (Special Measures) Bill 2012, Clause 4(5)

34 Security Offences (Special Measures) Bill 2012, Clause 4(1)

35 For the purpose of this section, “political belief or political activity” means engaging in a lawful activity
through—
(a) the expression of an opinion or the pursuit of a course of action made  according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by—
(i) membership of or contribution to that party; or
(ii) open and active participation in the affairs of that party;
(b) the expression of an opinion directed towards any Government in the Federation; or
(c) the pursuit of a course of action directed towards any Government in the  
Federation.

36 With the exception of minors, women and infirm persons.

37 Act to Amend the Universities and University Colleges Act 1971 and adjoining private institutions’ bills

38UUCA amendments make it more restrictive, says PKR”, Malaysiakini, 9 Apr.2012

39Campus politics: Controversial clause scrapped”, Free Malaysia Today, 19 Apr.12; "Changes for the better", The Star, 6 May 2012

40 The University and University Colleges (Amendment) Bill 2012,  s.15(2)(b) of Act 30 as substituted by cl.5

41 Private Higher Educational Institutions (Amendment) Bill 2012

42 Educational Institutions (Discipline) (Amendment) Bill 2012

43 s.12 of Act 301 as substituted by cl.4 to remove the period of validity for a licence or permit and to allow such licence or permit to remain valid for so long as it is not revoked

44 s.13A(1) of Act 301 as substituted by cl.5  to remove the prohibition of judicial review on the  decision of the Minister to grant, refuse to grant, revoke or suspend a licence or permit under  Act 301; and s.13B of Act 301 as substituted by cl.6 to give a person an opportunity to be heard before a decision to revoke or suspend such licence or permit is made under subs.3(3), 6(2) or 13(1), as the case may be.

45Censorship remains despite press law changes”, Malaysiakini, 3 May 2012

46 s.2

47 Companies Act 1965, s.24(1)

48 Commonly known as Kementerian Kewangan Malaysia

49 Commonly known as Lembaga Hasil Dalam Negeri Malaysia (LHDN)

50 "Court decision on Mkini publishing permit in June", Malaysiakini, 24 May 2012

51 "Malaysiakini wins court battle over print license", Malaysiakini, 1 October 2012

52 "Decision not to give permit to Mkini 'unconstitutional', Malaysiakini, 11 May 2012

53 "Malaysiakini's legal victory is significant for press freedom", Malaysiakini, 3 October 2012

54 "Malaysiakini wins court battle over print license", Malaysiakini, 1 October 2012

55 "Malaysiakini's legal victory is significant for press freedom", 3 October 2012

56 "Malaysiakini's legal victory is significant for press freedom", 3 October 2012

57 Commonly known as Jabatan Pendaftaran Pertubuhan Malaysia (JPPM)

58 Section 2 of the Societies Act defines “local society” as “any society organized and established in Malaysia or having its headquarters or chief place of business in Malaysia, and includes any society deemed to be established in Malaysia….”

59 Registrar of Societies, Malaysia (2012) Laporan Tahunan Jabatan Pendaftaran Pertubuhan Malaysia 2011 [Annual Report of the Registrar of Societies, Malaysia, 2011]. Putrajaya, Malaysia: Registrar of Societies (pp. 19-21).

60 Ibid, p. 21

61 Commonly known as Suruhanjaya Syarikat Malaysia (SSM).

62 The Companies Commission of Malaysia (CCM) is a statutory body formed as a result of a merger between the Registrar of Companies (ROC) and the Registrar of Businesses (ROB) in Malaysia. It remains under the supervision of the Ministry of Domestic Trade Cooperatives and Consumerism (MDTCC). 

63 s.6(2)

64 s.6(3)

65 Societies Act 1966, s.6(2) and declared an unlawful society under s.5(1).

66 30 October 2007: 4  HINDRAF  staff  members,  namely  M.  ManoharanP.  Uthayakumar, P.  Waytha Moorthy  and  S.  Ganapathi  Rao,  were  arrested  and  detained  for  taking  part  in  2007 demonstrations against the demolishing of a Hindu shrine in Kuala Lumpur. They were all acquitted due to a lack of evidence of incitement and sedition. 25 November 2007: HINDRAF  organized  a  rally  to  submit  the  petition  at  the  British  High  Commission. Malaysian  police  refused  to  grant  a  permit for the rally and set up roadblocks to screen motorists  entering the  city  center  of  Kuala  Lumpur. Police  arrested  5  HINDRAF  staff members  altogether,  including  3  leaders  and  lawyers  of  the  organization.  P. Uthayakumar, P. Waytha Moorthy and V. Ganabatirau were arrested under sedition charges. They were all acquitted due to a shaky prosecution and the lack of evidence to prove they had incited hatred. On 12 December 2007, Prime Minister Abdullah Badawi personally signed the detention letters to imprison the HINDRAF leaders under the ISA for two years, in which their detention terms were subject to infinite renewal. The reason given for this arrest was that the HINDRAF leadership had had links with international terrorist organizations such as LTTE and also supposedly militant organizations in the mould of RSS in India. 23 October 2008: A group comprising 8 men, 3 women and a child, were arrested by the police after they tried to hand a memorandum to the Prime Minister's office. The memorandum called for the release of the 5 HINDRAF staff members from detention under the Internal Security Act. (The five HINDRAF leaders were released from detention under the Internal Security Act in April 2009.)

67Syed Hamid defends Hindraf ban”, Malaysiakini, 23 October 2008

68 s.2

69 s.7(1): Upon receipt of an application under section 6, the Registrar shall, subject to the provisions of this section and to such conditions as the Registrar may deem fit to impose, register the local society making the application.

70 s.22(1)

71 s.22(2)

72 Societies Act 1966, Schedule 1, s.1

73 The Act affords the Registrar the power to make regulations in respect of prescribing the information and fees required for registration purposes (see s.67(2)(a),(d) and (e)).

74 s.7(3)(a)

75 Societies Act 1966, s.7(3)(d)

76Bersih challenges order declaring it illegal”, The Star, 9 July 2011

77 The case for judicial review in ongoing.

78Home minister: Bersih sit-in not security threat”, Malaysiakini, 19 Apr.2012

79 Companies Act 1965, s.14 (formation of companies), s.122(1) (directors) and s.36 (penalties liable if “the number of members of a company is reduced below two”)

80 Companies Act 1965, s. 129(1)

81 See s.16 for general rules on registration and incorporation

82 Companies Act 1965, s.16(4)

83 Companies Act 1965, s.22(6)(a). A charge of RM30 for the reservation of a name is applicable (see Second Schedule n.1). In comparison to all other limited companies registered under the Act – which are required to have the word "Berhad" or the abbreviation "Bhd." as part of and at the end of its name,  and the word "Sendirian" or the abbreviation "Sdn." inserted immediatey before “Berhad” or “Bhd.” for private companies (s.22(3) and (4)) – a proposed limited company which applies its income for providing recreation or amusement or promoting commerce, industry, art, science, religion, charity, pension or superannuation schemes or any other object useful to the community, can choose a name without the otherwize compulsory inclusion of the word “Berhad” or the abbreviation “Bhd.” (s.24(1)).

84 These documents include: original stamped copy of the memorandum and articles of association; statutory declaration by directors that he/she is not bankrupt/convicted and imprisoned for prescribed offences; declaration of compliance; original name search form; copy of CCM letter approving the name; a copy of the identity card of each director and company secretary. 

85 CCM guidelines and check list (including required documents and fees) of companies limited by guarantee (in Malay only)

86 Companies Act 1965, s.11(10). See also s.139D

87 Companies Act 1965, s.11(10). See also s.139D

88 Excluding where (i) it is organized and is operating wholly outside Malaysia; (ii) no office, place of business or place of meeting is maintained or used in Malaysia by such society or by any person in its behalf; (iii) no register of all or any of the members of such society is kept in Malaysia; and (iv) no subscriptions are collected or solicited in Malaysia by the society or by any person in its behalf.

89 s.4

90 s.7(3)(d)

91 Companies Act 1965, Part IX Division 2

92 SUARAM (2011) Malaysia Human Rights Report 2010: Civil and Political Rights (p. 99); (2010) Malaysia Human Rights Report 2009: Civil and Political Rights (p. 105). Petaling Jaya, Malaysia: SUARAM Kommunikasi.

93 s.2A

94 s.13(1)

95 On 12 October 2011, the ROS deregistered the Malacca Chinese Assembly Hall for holding its Annual general Meeting without sufficient quorum. On 15 November 2011, the Malaysian Medical Association (MMA) was deregistered following complaints from members over the manner in which the AGM elections were conducted in May 2011. The body was said to have violated its own Constitution. The charges incude failing to send out complete list of candidates, vote-buying for positions seven weeks prior to the AGM and also failing to include the elections in its agenda. However, the MMA appealed and the deregistration has still not been enforced. On 22 February 2011, the MMA was warned again of impending deregistration. The Human Rights Party (HRP) has failed to get registered as a political party when its application was rejected by the ROS. Following that decision, the bid to be registered as a political party under the Federal Constitution and SA 1966. On 16 August 2011, the Kuala Lumpur High Court dismissed the HRP’s application for judicial review, on the grounds of it being academic. It found that the party was not properly organized and that is had failed to produce a Constitution that complied with ROS requirements. It has tried to register (albeit under a different name) since the year 2000. In response, the HRP is seeking an order of centiorari (for the second time) to set aside the presumed rejection of registration of the HRP by the Home Ministry’s failure to respond within 14 days of the appeal being made on 19 August and the letter of rejection of the ROS. For example, the ROS revealed that 705 organizations had been deregistered throughout 2009. (See “ROS threatens to ban anti-logging NGO”, Malaysiakini, 28 December 2009)

96 s.13(2A)

97 s.5(1) and s.13A(1) The Registrar may also dissolve a society if it appears that the funds of a society, which has more than 2,000 or more members, are insufficient to meet existing claims, or that the rates of contributions are insufficient to cover the benefits assured. The assets are then divided up by the Registrar. (See s.38(1) and (2))

98 s.13A(1)

99 s.67(2)(b)

100 Societies Act 1966, s.63. Nb. The Registrar is required to give prior notice to the office-bearer of such society if he/she intends on entering the society’s place of meeting to search its documents. However, the Act does not specify a time period necessary for the notice.

101 Societies Act 1966, s.64(1)

102 Ibid

103 Societies Act 1966, s.64(2)

104 Societies Act 1966, s.14(1)

105 Societies Act 1966, s.14(2)

106 Societies Act 1966, s.14(3)

10769,000 groups face ROS deregistration”, Malaysiakini, 20 January 2012

108 Societies Act 1966, s.67(3)

109 Societies Act 1966, s.50(3)

110 Societies Act 1966, s.15(2)

111 Societies Act 1966, s.11(2)

112 Societies Act 1966, s.13A(7)

113 Includes information about the company’s directors, secretary, registered office, shareholders, share capital, principal business activities, among other documents

114 Companies Act 1966, s.7B(1)

115 Companies Act 1966, s.7B(2)

116 Companies Act 1966, s.143(4)(a)

117 Companies Act 1966, s.165(7)

118 Companies Act 1966, s.367.

119 Companies Act 1966, s.217(1)(b)

120 Companies Act 1966, s.217(1)(d)

121 Companies Act 1966, s.217(1)(e)

122 Companies Act 1966, s.217(1)(h)

123 Companies Act 1966, s.218(1) (g)(ii)

124 Companies Act 1966, s.218(1)(m)

125 In November 2009, SUARAM, through a team of Paris-based lawyers, submitted to a French prosecuting courts, documents containing allegations of blackmail, influence peddling, misuse of corporate assets, concealment and bribery in the sale of 2 Scorpene submarines by French company DCN to the Malaysian government. The inquiry is probing alleged corruption crimes and illegal bribes involving top officials from both Malaysia and France. The case is currently being investigated in the French courts.

126 "Raid on Suaram thwarted by faulty warrant," Malaysiakini, 3 July 2012

127 "Routine check on firm," New Straits Times, 5 July 2012

128 SUARAM Press Statement, "SUARAM Reaffirms Commitment to Work for Human Rights for Malaysians", 6 July 2012

129 "Raid on Suaram thwarted by faulty warrant," Malaysiakini, 3 July 2012

130 With the exception of CSOs that exist as legal entities through the CA 1965, which prohibits political activities and trade unions.

131 The Internal Security Act provides powers to the government to detain individuals who commit acts deemed to be “prejudicial to the security of Malaysia” or threatening to the “maintenance of essential services” or “economic life” without trial for an initial 60-day period in special police holding centers, for the purpose of investigation. No judicial order is required for such detentions. At the end of the 60-day period, the Minister of Home Affairs may choose to release a detainee on restrictive orders, or order further detention without trial for a term of two years. The Minister can renew the two-year detentions indefinitely.

132 Section 8 of the Official Secrets Act criminalises the possession or dissemination of “official secrets”. The Act gives overly broad powers to ministers and public officers to categorise any official document as an “official secret”, and such a classification cannot be questioned in court – even though it may not be a “secret” or security risk, and its dissemination has public interest value. The penalty for possessing or disseminating “official secrets” is imprisonment for up to seven years.

133 Restricting activities on the basis of the need to maintain religious and ethnic harmony may have an hindering impact on NGOs of different convictions to Islam, including those of atheist conviction.

134 Sections 211(1) and 233(1) make illegal communications that “annoy, abuse, threaten or harass” any persons, without giving specific definitions as to what the terms mean in the context of the Act.

135 The Printing Presses and Publications Act gives the Home Ministry discretion to prohibit publications containing anything that is deemed to be “prejudicial to public order or national security”. Furthermore, Section 8A of the Act states: “Where in any publication there is maliciously published any false news, the printer, publisher, editor and the writer thereof shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding three years or to a fine not exceeding twenty thousand ringgit or to both.” This provision was used against human rights activist Irene Fernandez, who in 1996 was arrested, charged, and subsequently convicted to a one-year sentence for publishing “false information” in a memorandum titled “Abuse, Torture and Dehumanised Conditions of Migrant Workers in Detention Centres”. The conviction was however challenged by Fernandez, and was subsequently overturned by the High Court in 2008. See “Activist Irene Fernandez acquitted”, The Star, 24 November 2008

136 Of most significant is the 10 June 1988, amendment to the Federal Constitution by former Prime Minister Mahathir Mohamed during his 20-year tenure (1981-2003), which effectively removed the words “the judicial power of the Federation shall be vested in the High Courts” of Article 121 and thus forcing the courts to be subservient to the executive arm of government by stipulating that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred under federal law.” (See “Dr M ‘assaulted’ judicial independence, says Bar Council”, The Malaysian Bar, 20 February 2012)N.b. Special Rapporteur on independence of judges and lawyers Gabriela Knaul extended the Malaysian government a visit request in 2011, which remains to be accepted.

137Speech by Tan Sri bin Zakaria, Chief Justice of Malaysia, at the Opening of the Legal Year 2012 (14 Jan ”, The Malaysian Bar, 19 January 2012

138Students defy quit order staying put at Dataran”, Malaysiakini, 15 Apr.2012

139 Fahmi Reza (social activist) and Umar Mohd Azmi (social activist) on 22 April (“DBKL evicts activists, ‘occupies’ Dataran”, Free Malaysia Today, 24 Apr.2012)Ekhsan Bukharee Bin Badarul Hisham (student activist), Muhammad Aliff Hafiz Bin Zainuddin (student activist), Saiful Buhari Bin Ramlan (student activist) and Muhamad Karim Bin Abdullah (supporter)  on 24 April (“Four activists held, donation ‘stolen", Free Malaysia Today, 24 Apr 2012

140 Umar Mohd Azmil (“Student activist’s hearing fixed for May 8”, Malaysiakini, 23 April 2012

141 "Suaram company to face five charges", Free Malaysia Today, 8 September 2012

142 "Six government bodies to act against Suaram", Free Malaysia Today, 18 September 2012

143 Penal Code, Section  186: Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to three months or with fine which may extend to one thousand ringgit or with both.

144Student activist’s hearing fixed for May 8”, Malaysiakini, 23 Apr.2012

145Dataran 4 say they were 'roughed up' by DBKL”, Malaysiakini, 25 Apr.2012

146Bersih rally: Anti-Lynas group to walk from KLCC”, Malaysiakini, 7 Apr.2012; "Anti-Lynas rally in Bukit Merah on April 28", Free Malaysia Today, 10 Apr.2012

147Bersih 3.0 rally is on! April 28 in Dataran Merdeka”, Malaysiakini, 4 Apr.2012

148DBKL says no to Bersih rally at Dataran Merdeka”, Malaysiakini, 22 Apr.2012; “DBKL: Dataran not venue for politics, dissent”, Malaysiakini, 23 Apr.2012

149Nazri: Dataran Merdeka not gazetted for assembly”, Malaysiakini, a Apr.2012

150  "Police get court order, Dataran off-limits for 4 days", Malaysiakini, 27 Apr.2012: “Therefore, any gathering at Dataran Merdeka, that is the land bordering Jalan Sultan Hishamuddin, Jalan Raja and Jalan Kelab except the area occupied by the Selangor Royal Club... is hereby banned, and the public are warned against attending, being present or taking part in any gathering from April 28, 2012 to May 1, 2012….”

151 Barring simultaneously International Labour Day demonstrations. 

152 Criminal Procedure Code, s.98: Magistrate may…direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management if the Magistrate considers that the direction is likely to prevent or tends to prevent obstruction, annoyance or injury to any persons lawfully employed, or danger to human life, health or safety, or a riot or any affray.

(3)   An order under this section may be directed to a particular person or to the public generally when frequenting or visiting a particular place.

153 Home Minister Hishamuddin Hussein issued a warning on 26 April 2012 that essentially justified Violent actions by the police. ("Hishammuddin: Police Will Take Necessary Action if Assembly Held at Dataran Merdeka", Malaysia Today, 26 Apr.2012) Kuala Lumpur City Mayor Ahmad Fuad Ismali warned that DBKL would act in a similar manner as they did with the PTPTN students. ("‘Rally all you want, but not at Dataran’", Malaysia Today, 27 Apr.2012; "Bersih 3.0 'now a security issue', says KL mayor", Malaysiakini, 27 Apr.2012). Kuala Lumpur police chief Datuk Mohmad Salleh warned on 27 April 2012 that “any contravention of the restraning order is an offence under section 188 of the Penal Code”, which carries a jail term of six months, a penalty of up to RM2,000 or both. (“BN accountable for police brutality”, Aliran, 2 May 2012)  

154 "Malaysian protesters break through barricades", Jakarta Post, 3 May 2012

155 "DBKL locks down Dataran Merdeka", Free Malaysia Today, 28 Apr.2012

156Police response during BERSIH 3.0 rally disproportionate and excessive – Malaysian Bar”, Lim Kit Siang, 29 Apr.2012. See also “Police flayed for 'grotesque use of force”, Free Malaysia Today, 29 Apr.2012

157Journalists assaulted, arrested while covering protest”, Centre for Independent Journalism (CIJ)
Malaysia/IFEX: The global network for free expression, News Alert, 30 Apr.2012. The worst account so far may be that of Radzi Razak, journalist for The Sun newspaper, who suffered facial fracture and had to have his jaw wired shut. (“Assaulted the Sun reporter has facial fracture”, Malaysiakini, 3 May 2012)      

158Why were cops not wearing name tags?”, Malaysiakini, 3 May 2012

159300,000 at Bersih 3.0, Ambiga claims success”, Malaysiakini, 28 Apr.2012

160Police violence marks Malaysia reform rally”, Al Jazerra, 28 Apr.2012

161Police free all arrested during Bersih rally”, The Malaysian Insider, 29 Apr.2012

162 Ibid

163 "49 individuals sought over Bersih 3.0", Malaysiakini, 3 May 2012, "Bersih fracas: Cops release photos of officers", Free Malaysia Today, 5 May 2012

164 "Bersih rally: Cops tracking down another 113", Free Malaysia Today, 5 May 2012

165 On 4 May, 8 participants lodged reports at the Petaling Jaya district police headquarters claiming they were asaulted by the police during the rally. "Eight police reports over police abuse", Free Malaysia Today, 4 May 2012

166 Another example of the government’s despondency to the BERSIH 3.0 rally taking place is that on the 20 April 2012, at aound 3am, the police arrested Tan Hon Kai, an intern with the Malaysian human rights group SUARAM, while he was putting up Bersih 3.0 posters at the University Science Malaysia in Penang, on allegations of trespassing. He was detained at the Timur Laut police station from 4.15am and released on bail at 4pm that same day. On 7 May 2012, he was charged with tresspassing under Section 477 of the Penal Code, which carries with it a jail term of up to 6 months or a maximum fine of RM3,000, or both.  On 8 August the court decided to discharge Tan Hon Kai without acquittal. Tan’s lawyer Tham Shien Shyong explained that Tan can still be charged for the same offence in future. According to Tham, Tan has been discharged after the order from the Attorney-General due to the fact that he entered the campus by invitation. “Urgent Appeal: Suaram intern has been arrested putting up BERSIH 3.0 posters”, Suaram, 20 Apr.2012; “Bersih activist charged with trespassing”, Free Malaysia Today, 7 May 2012, and “Bersih poster activist discharged without acquittal”, Malaysiakini, 9 August 2012

167Police form special panel to probe brutality claims”, Malaysiakini, 3 May 2012

168 On 18 May, Lans Korporal Mohd Khairul Asri Mohd Sibri and Konstable Shahrul Niza Abd Jalil
were charged for assaulting Wong Onn Kin between 5.20 and 5.30pm on 28 April 2012 (“Bersih 3.0 violence: Two cops charged”, Free Malaysia Today, 18 May 2012)

169Trial of cops for assault in Bersih 3.0 postponed”, Malaysiakini, 18 June 2012

170 Another example of the government’s despondency to the BERSIH 3.0 rally taking place is that on the 20 April 2012, at aound 3am, the police arrested Tan Hon Kai, an intern with the Malaysian human rights group SUARAM, while he was putting up Bersih 3.0 posters at the University Science Malaysia in Penang, on allegations of trespassing. He was detained at the Timur Laut police station from 4.15am and released on bail at 4pm that same day. He currently awaits charges. (“Urgent Appeal: Suaram intern has been arrested putting up Bersih 3.0 posters”, Suaram, 20 Apr.2012)

171 Reporters Without Borders, Internet Enemies Report 2012, (pp. 56-7)

172 Ibid (p. 56)

173Election fever in Malaysia”, Asia News Network, 22 March 2012

174 Located on the island of Borneo

175Many opposition and news sites brought down by cyber-attacks in election run-up”, Reporters Without Border, 15 April 2011

176 See the cases of Amazudi Ahmat, Ahmad Sofian Yahya and Irwan Abdul Raman

177 Communications and Multimedia Act 1998, s.126

178 Communications and Multimedia Act 1998, s.211(1) and s.233(1)

179 Communications and Multimedia Act 1998, s.211(2) and s.233(3)

180 Societies Act 1966, s.13A(1)(b) – the Registrar must first give the society a chance to defend their case.

181 Societies Act 1966, s.13A(1)(1) – the Registrar must first give the society a chance to defend their case.

182 Societies Act 1966, s.13A(7)

183PM: National Harmony Act to replace Sedition Act”, The Star, 11 July 2012

184Bishop: new law could be a misnomer”, Free Malaysia Today, 15 July 2012

185 See, for example, “Malaysia Scraps Law Seen as Weapon Against Critics”, The Wall Street Journal, 11 July 2012

186 A peninsula that lies on the western side of the country. Formely known as Malaya.

187 In the run-up to the 2011 state-level election in Sarawak, several activists were barred from entrance into Sarawak. They include, among others, Ambiga Sreenevasan (Chairperson of electoral reforms advocacy group, BERSIH 2.0), Wong Chin Huat (another activist from BERSIH 2.0), and Haris Ibrahim (human rights lawyer, who is also involved in BERSIH 2.0’s activities). Malaysian human rights organization SUARAM compiled a list of individuals who have been banned from entering into Sarawak since the 1990s. SUARAM’s list includes a number of civil society key activists who had campaigned against the construction of a mega dam in Sarawak since the mid-1990s. See SUARAM (2008) Malaysia Human Rights Report 2007: Civil and Poltical Rights. Petaling Jaya, Malaysia: SUARAM Kommunikasi.

188 Prohibits the use of funds from unlawful activities and requires registered societies to take steps to ensure that their sources of funding are legitimate.

189  “Foreign groups ‘funding’ Bersih rally”, The Star, 28 June 2011

190Police to investigate Ambiga’s foreign funds”, Free Malaysia Today, 4 July 2011

191Police to use all available laws to prevent July 9 demonstrations”, The Star, 30 June 2011

192 "CCM raids the office of Suaram's auditor, company secretary", Malaysiakini, 5 September 2012

193 "Press Statement: by YB Foreign Minister of Malaysia on the funding provided by German embassy in Kuala Lumpur to Suaram”, 6 September 2012

194 Two global funders and nine NGOs including Bersih, Centre for Independent Journalism, Lawyers for Liberty, Merdeka Centre, South-East Centre for E-Media and Suaram

195Plot to destabilize government”, The New Straits Times, 21 September 2012; “NST given 7 more days to apologize”, Free Malaysia Today, 4 October 2012

196NST given 7 more days to apologize”, Free Malaysia Today, 4 October 2012

197Utusan: Malaysiakini must ‘apologize to Malaysians'”, Malaysiakini, 30 September 2012

198Chandra expresses shock over Mkini-Soros link”, The Star, 29 September 2012

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