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Last updated 6 February 2013
Malaysia is a federal constitutional monarchy with a population of approximately 28.3 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 through various laws such as the Peaceful Assembly Act 2012 (which replaced the equally restrictive Section 27 of the Police Act 1967), the Internal Security Act 1960, the Sedition Act 1948 and the Printing Presses and Publications Act 1984, among others, have seriously curtailed the work of many NGOs and civil society groups in Malaysia.
|Organizational Forms||Societies||Companies limited by guarantee|
|Registration Body||Registrar of Societies (ROS)||Companies Commission of Malaysia|
|Approximate Number||47,636 local societies and 70,300 branches registered under the ROS nationwide (2011)||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.
|Restrictions on assembly.
|Barriers to International Contact||Government authority to prohibit society from having contact with anyone outside Malaysia.||None|
|Barriers to Resources||None||None|
|Population||29,179,952 (July 2012 est.)|
|Type of Government||Constitutional monarchy|
|Life Expectancy at Birth||Male: 71.28 years
Female: 76.99 years (2012 est.)
|Literacy Rate||Male: 70.16%
Female: 76.87% (2011 est.)
|Religious Groups||Muslim (or Islam - official) 60.4%, Buddhist 19.2%, Christian 9.1%, Hindu 6.3%, Confucianism, Taoism, other traditional Chinese religions 2.6%, other or unknown 1.5%, none 0.8% (2000 census)|
|Ethnic Groups||Malay 50.4%, Chinese 23.7%, indigenous 11%, Indian 7.1%, others 7.8% (2004 est.)|
|GDP per capita||$15,600 (2011 est.)|
Source: CIA World Factbook and Nepal Central Bureau of Statistics
|Ranking Body||Rank||Ranking Scale
(best – worst possible)
|UN Human Development Index||61||1-182|
|World Bank Rule of Law Index||65.4||100 – 0|
|World Bank Voice & Accountability Index||31.3||100 – 0|
|Freedom House: Freedom in the World||Status: Partly Free
Political Rights Score: 4
Civil Liberties Score: 4
|Free/Partly Free/Not Free
1 – 7
1 – 7
|Foreign Policy: Failed States Index
||110||177 – 1|
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
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 (recently reaffirmed by the Government of Malaysia4), the Official Secrets Act of 1972, the Printing Presses and Publications Act of 1984, the Internal Security Act of 1960, and criminal defamation laws, among others. However, the government has recently announced the abolition of some of these laws, including the Internal Security Act and the Sedition Act, which will be replaced with other equally restrictive legislations.
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 recently 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. This newly-enacted law came into force in April 2012.
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 Section 15 of the Universities and University Colleges Act of 1971 is used to restrict freedom of association by mandating university approval for student associations and prohibiting student associations and faculty members from engaging in political activity. However, in 2008, Parliament passed amendments that loosen the Act’s restrictions on student activism.10 Students were given permission to join outside bodies, but they were still banned from joining political parties.11 Similarly, student organizations could be affiliated with other organizations but not with any political party. 12 They are also banned from expressing support for, or opposition to, any political party.13 The amendments gave the Minister responsible for internal security additional discretionary powers.14 More amendments were passed by Parliament in April 2012, but yet to be enforced.
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.
Legislation affecting freedom of association / CSOs:
- Societies Act 1966
- Trade Unions Act 1959
- Universities and University Colleges Act 1971
- Legal Profession Act 1979
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 National Harmony Act)
- Section 114A of the Evidence Act 1950
- Defamation Act 1957
- Official Secrets Act
- Printing Presses and Publications Act 1984
- Communications and Multimedia Act 1998
- Police Act 1967 (note the recent repeal of Section 27 in the Police (Amendment) Act 2012)
- Peaceful Assembly Act 2012
- Penal Code
- Internal Security Act 1960
- Emergency (Public Order and Prevention of Crime) Ordinance 1969
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
Proposals to Restrict Foreign Funding of NGOs
In October 2012, several parliamentarians proposed a law to restrict the foreign funding of NGOs. The MP in charge of Parliamentary Affairs for the Prime Minister said, “The influx of foreign funds will cause us to become agents of foreign powers...” Another MP proposed a law that would compel all NGOs to record and declare to the Registrar of Societies all funds received from local or foreign sources.
Security Offences (Special Measures) Bill 2012 29
Prime Minister Najib Tun Razak announced in September 2011 a repeal of the draconian Internal Security Act (ISA) and Emergency (Public Order and Prevention of Crime) Ordinance (EO), which provide powers to the government to detain individuals without trial.30 These laws have been used by the authorities to arbitrarily pursue and detain civil society activists, journalists, bloggers and opposition leaders in order to serve their political ends.31
On 17 April 2012, the new Security Offences (Special Measures) Bill 2012 was passed unanimously without any amendments by its third reading (after the second reading by Prime Minister Datuk Seri Najib Razak was debated for 10 hours the day before) by the Lower House of Parliament. 32 The new Bill, which replaces the Internal Security Act 1960, has been strongly criticized by various civil society groups.
For example, while Clause 4 of the Bill 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), by allowing for a delay of 48 hours before the suspect has access to a lawyer, encourages abusive interrogations and the possibility of confession under duress.
The new Bill also provides powers to the public prosecutor and the police to intercept communications on suspects, and permits the police unilaterally to impose electronic monitoring devices on individuals released from detention (Clause 6), in deliberate breach of private life and infringement of the principle that a person is presumed innocent until proven guilty. Furthermore, while the Bill 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 Bill 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 Bill 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 Bill specifies that the repeal of the ISA will not lead to the release of current ISA detainees (Clause 32(2)).
Amendments to the UUCA: Universities and University Colleges (Amendment) Bill 201237
Another legislative initiative includes amendments to Section 15 of the Universities and University Colleges Act of 1971, following the 31 October 2011 Court of Appeal judgment in the cases of Muhammad Hilman Idham, Woon King Chai, Muhammad Ismail Aminuddin and Azlin Shafina Mohamad Adza, who challenged the constitutionality of the disciplinary action taken by their university for being present during a parliamentary by-election campaign in April 2010. The Court ruled that Section 15(5)(A) of the Act was unconstitutional because it prohibited students from expressing support for, or opposition to, any political party, and therefore was unreasonable and violated the freedom of speech. The Universities and University Colleges (Amendment) Bill 2012 was tabled for first reading in Parliament on 9 April 2012 and passed on 19 April 2012, but remains to be officially gazetted to become a working legislation.
While the first version of the amendment was going to permit students to take up membership in political parties, it came with a caveat restricting them from taking part in campus elections, holding posts in student bodies and carrying on political activity on university campuses (Section 15(2)(c)).38
This was allegedly aimed at curbing the influence of political parties in universities and making sure academic institutions stay politically neutral. However, these provisions have been said to be unnecessarily restrictive, unreasonable and disproportionate barriers to a student’s freedom of association under Article 10(1)(c), and freedoms of speech and expression under Article 10(1)(a) of the Federal Constitution. Following much pressure from the opposition, a revised version of the amendment was tabled in Parliament39, although it still contains a provision that empowers the board of directors of a university or the registrar general to determine if the society or organization that a student intends to join is "unsuitable to the interest and well-being of the students or university.”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 were both also passed by Parliament on 19 April 2012.
Amendments to the PPPA: Printing Presses and Publications (Amendment) Bill 2012
Amendments to the Printing Presses and Publications Act (PPPA) were passed by Parliament on 19 April 2012, as part of the government’s efforts to improve its public image on the 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 Minister to revoke or suspend permits under the amended law.44 Whilst 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 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 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 Ministry's decision claiming Malaysiakini as "improper and irrational" and 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
National Harmony Act to replace the Sedition Act
On 11 July 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 law 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. No details on the contents of the proposed new law have been provided by the government to date. 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
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
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 30 November 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 15 October 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 9 July 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 8 July 2011 an application for a judicial review at the High Court (Appellate and Special Powers) registry to quash the 1 July 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 28 April 2012 would be allowed as it was not a security threat.78 BERSIH quickly submitted, on 25 April 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
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
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 latest application, made in 2006 – the sixth time since 1998 – was rejected by the ROS.92
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 incur 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 incur a fine of RM2,000,117 while using a company name in business prior to incorporation shall incur a fine of RM50,000 and/or three years imprisonment.118
Under the CA 1965, a company may be involuntarily wound up through court order by the petition of any creditor,119 liquidator,120 Minister,121 or Registrar.122 Two circumstances where this mandate is most likely to act to the detriment of CSOs are: (a) where it is in the interests of the public;123 and (b) where the company is being used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare, security, public order, good order or morality in Malaysia.124
On 3 July 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 3 July 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 4 July 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, to date, no formal charges have been brought against Suara Insiatif Sdn Bhd. See also Barriers to Resources.
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 Internal Security Act of 1960,133 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. 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.
Here are some of the most recent cases of the restriction of CSOs’ freedom of expression and assembly:
‘Occupy Dataran’ PTPTN Protest (14-27 April 2012)
A group of students camping at the iconic Dataran Merdeka square in Kuala Lumpur since 14 April 2012, campaigning for free tertiary education and thus the abolition of the National Education Loan Fund (PTPTN) they deem exploitative, were repeatedly raided by the Kuala Lumpur City Hall (DBKL) with the assistance of the police. Their movement was dubbed ‘Occupy Dataran’. Officers used force to push through the protesters and forcibly dismantled their tents, alleging their occupation was outside the parameters of the not-then-in-force Peaceful Assembly Act 2012.140 Six activists were arrested in relation with their defiance to move.141 Some were charged under Section 186 of the Penal Code and face possible convictions142 for obstructing public servants from performing their duties.143 One had his hearing fixed for 8 May 2012.144 On 24 April 2012, the four arrestees allegedly suffered police mistreatment during their arrest. They allege having been beaten, stepped on the face and dragged. 145 There is yet to be disciplinary action against the officers involved.
BERSIH 3.0 (28 April 2012)
On 28 April 2012, the Coalition for Clean and Fair Elections held its third protest cross-country: BERSIH 3.0. The biggest sit-in was expected to take place at the Dataran Merdeka. The green NGO coalition Himpunan Hijau planned to champion their cause against the building of the Lynas Advanced Materials Plant by marching alongside BERSIH 3.0.146 In the weeks prior to the event,147 there was widespread reprisal from the authorities trying to prevent the rally taking place. The KBKL, as de facto owners of the Dataran, refused to give the organizers permission on the basis that it could not be described as a “national level” celebration and as containing political and dissenting elements148, “not gazetted for assembly” and thus in breach of the Peaceful Assembly Act 2012 passed earlier that same week on 23 April.149 On 27 April, The Magistrate’s Court of Kuala Lumpur issued an order150 barring BERSIH 3.0 from assembling in the vicinity of the Dataran from 28 April to 1 May 2012151, on the basis of Article 65 of the Local Government Act, and Sections 90 and 98 of the Criminal Procedure Code.152 In light of this new development, the authorities were quick to issue the BERSIH 3.0 organizers warnings that police would take necessary actions to uphold the law153; essentially justifying the legality of violence against the protesters if they deemed necessary. Sure enough, on the day of the rally at around 3pm, widespread violence erupted after a small group of protesters forcibly breached the barbwire barricades154 that the police had installed in a 600-metre periphery around the Dataran.155
The 80 Malaysian Bar Council monitors present on the day note that police were “indiscriminate [in] discharging multiple tear gas [directly at the crowd] without any obvious provocation, and arbitrary use of water cannons.” “They also maneuvered their firing pattern to box in the participants rather than allowing them to disperse quickly.” The monitoring team also witnessed “numerous acts of police brutality, such assaulting arrested persons.”156 The Centre for Independent Journalism catalogued at least 12 accounts of assault against media persons, and confiscations and/or destruction of video recording devices and/or memory cards, indicating an attempt by the police to cover up or prevent the full and accurate recording of the rally.157 There were reports that some police personnel had removed their name tags to make it impossible for protesters to identify their attackers.158 Out of a crowd estimated at 250,000 – 300,000 (BERSIH)159, 80,000 – 100,000 (independent sources)160; 512 were reportedly arrested and taken into temporary detention.161 They were all released by the next day.162 The police are now tracking down over one hundred people linked to the chaos during the rally.163 As of May 19, 2012, 28 have been detained after surrendering or being located.164 Such acts of arbitrary violence165 reflect the strong hold of the government and the true extent of Malaysians' freedom of expression and assembly.166
However, in the aftermath, the police set up a panel to look into allegations of police brutality claims.167Consequently, two were charged under Section 352 of the Penal Code with committing violent crimes against a photographer during the rally.168 The hearing of the case scheduled on June 18 has been postponed to August 29, 2012.169
According to the Reporters Without Borders 2011 report,170 Malaysia has seen increased pressure on bloggers and the media, as well as website blocking, especially during election time.171 This is a grave concern considering the upcoming general elections in 2012172 and the need to avoid a repeat of the events in the run-up to the 2011 state-level elections in the East Malaysian state of Sarawak,173 where there were many accounts of opposition and news websites being the target of cyber-attacks. Web-sites like the Sarawak Report, Radio Free Sarawak, Dayak Baru Blog and Malaysiakini were rendered temporarily inaccessible, and their Twitter accounts were suspended.174
“Netizens” have been the targets of pressure through defamation suits, often filed by political figures.175 The combination of this threat in conjunction with harsh penalties under the Communications and Multimedia Act of 1998 has generated a climate of self-censorship for the online community.
While the Communications and Multimedia Act appears to guarantee internet freedom through Section 3(3): “Nothing in this Act shall be construed as permitting the censorship of the internet”; the Act requires some network service providers to obtain a license before being able to operate within Malaysia.176 The Act permits the punishment of the owner of the website or blog for “knowingly” allowing content of a religious, racial or political nature that a court may deem “indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any persons.”177 If either section is breached, the penalty is a fine not exceeding RM50,000 or imprisonment for a term not exceeding one year, or both. The offender shall also be liable to a default fine of RM1,000 for continuing offences.178
Barriers to International Contact
Generally, there is no 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 the Societies Act, however, does open up the possibility of interference with a society’s international affiliations. Specifically, a society must, as part of its annual report, furnish the Registrar with the name and address of any affiliated foreign associations. 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.179 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.180
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.181
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 law 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 society182. No details on the contents of the proposed new law have been provided by the government to date. This announcement was largely met with caution by civil society, including religious leaders183, as other repressive laws recently repealed were replaced with equally restrictive laws, which were legislated with little or no public consultation.184
Meanwhile, scores of individuals, mainly human rights defenders, from Peninsular Malaysia185 have been barred from entering the East Malaysian state of Sarawak.186 These restrictions have been invoked under the autonomy powers over immigration controls of the East Malaysian states of Sabah and Sarawak within the borders of the two respective states. The two East Malaysian states’ autonomy over immigration controls within their respective borders is a result of an agreement achieved when they joined the other states in Peninsular Malaysia to form the Federation of Malaysia in 1963.
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.
Since 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 critized by the government following the embassy's admission that it has funded Suaram. The Foreign Ministry of Malaysia issued a statement, stating that funding from the German embassy could be viewed as "interference in the domestic affairs of a sovereign state".192 See also Harassment of SUARAM by the Companies Commission of Malaysia
On September 21, 2012, newspaper New Straits Times, in a front page article, alleged six Malaysian NGOs (including SUARAM)193 for being mediators of foreign agents who "plot to destabilize the government.194 The six NGOs demanded an apology and retraction of the article, published on September 21, otherwise promising to take a legal action against the newspaper.195 Online news portal Malaysiakini have 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, Minister in the Prime Minister's Department Datuk Seri Mohamed Nazri Aziz reportedly said that lws 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 th enactment of a new legislation to regulate foreign funds, citing that existing laws are sufficient to deal with issues such as "the spread of subversive foreign influence", such as newly-enacted Security Offences (Special Measures) Act 2012.
|UN Universal Periodic Review Reports|
|Reports of UN Special Rapporteurs|
|USIG (United States International Grantmaking) Country Notes||
|U.S. State Department|
|Failed States Index Reports|
|IMF Country Reports|
|International Commission of Jurists||
|International Center for Not-for-Profit Law Online Library|
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 firstname.lastname@example.org.
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 Datuk Seri Najib Tun 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).
1Malaysia, Population and Housing Census (2011) Population Distribution and Basic Demographic
Characteristics 2010. Putrajaya, Malaysia: Department of Statistics.
- all citizens have the right to assemble peaceably and without arms; all citizens have the right to form associations.
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
- 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.
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.
35 For the purpose of this section, “political belief or political activity” means engaging in a lawful activity
(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
37 Act to Amend the Universities and University Colleges Act 1971 and adjoining private institutions’ bills
38 “UUCA amendments make it more restrictive, says PKR”, Malaysiakini, 9 Apr.2012
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.
45 “Censorship remains despite press law changes”, Malaysiakini, 3 May 2012
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
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).
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).
66 30 October 2007: 4 HINDRAF staff members, namely M. Manoharan, P. 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.)
67 “Syed Hamid defends Hindraf ban”, Malaysiakini, 23 October 2008
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.
76 “Bersih challenges order declaring it illegal”, The Star, 9 July 2011
78 “Home minister: Bersih sit-in not security threat”, Malaysiakini, 19 Apr.2012
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)
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.
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.
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)
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))
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.
107 “69,000 groups face ROS deregistration”, Malaysiakini, 20 January 2012
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
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
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.
137 “Speech 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
138 “Students 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.
144 “Student activist’s hearing fixed for May 8”, Malaysiakini, 23 Apr.2012
145 “Dataran 4 say they were 'roughed up' by DBKL”, Malaysiakini, 25 Apr.2012
147 “Bersih 3.0 rally is on! April 28 in Dataran Merdeka”, Malaysiakini, 4 Apr.2012
149 “Nazri: 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….”
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)
155 "DBKL locks down Dataran Merdeka", Free Malaysia Today, 28 Apr.2012
156 “Police 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
157 “Journalists 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)
158 “Why were cops not wearing name tags?”, Malaysiakini, 3 May 2012
159 “300,000 at Bersih 3.0, Ambiga claims success”, Malaysiakini, 28 Apr.2012
160 “Police violence marks Malaysia reform rally”, Al Jazerra, 28 Apr.2012
161 “Police free all arrested during Bersih rally”, The Malaysian Insider, 29 Apr.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
167 “Police 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)
169 “Trial 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)
173 “Election fever in Malaysia”, Asia News Network, 22 March 2012
175 “Many opposition and news sites brought down by cyber-attacks in election run-up”, Reporters Without Border, 15 April 2011
183 “PM: National Harmony Act to replace Sedition Act”, The Star, 11 July 2012
184 “Bishop: 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
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.
189 “Foreign groups ‘funding’ Bersih rally”, The Star, 28 June 2011
190 “Police to investigate Ambiga’s foreign funds”, Free Malaysia Today, 4 July 2011
191 “Police 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
196 “NST given 7 more days to apologize”, Free Malaysia Today, 4 October 2012
197 “Utusan: Malaysiakini must ‘apologize to Malaysians'”, Malaysiakini, 30 September 2012
198 “Chandra expresses shock over Mkini-Soros link”, The Star, 29 September 2012