Malaysia

Last updated: 4 November 2019

Update

At the end of the mid-year Parliament session in July 2019, the government introduced the Independent Police Complaints and Misconduct Commission (IPCMC) Bill, which proposes the IPCMC based on the 2005 Report of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police. The Bill, however, contained fundamental flaws that would potentially jeopardize the viability and efficacy of the proposed Commission. The de facto law minister called for multiple consultations and townhall meetings to address some of the concerns prior to the tabling of the Bill on October 7, 2019. Since then, the Bill has remained tabled with slight amendments, and the Parliament Select Committee for the Consideration of Bills will likely make more changes.

In addition, harassment against civil society has relented in 2019, but the government has started new investigations against some members of civil society for raising concerns about human rights violations by police.

Introduction

State authorities often dismiss civil and political rights in Malaysia, and human rights violations occur on a frequent basis. As of the end of 2018, Malaysia had only signed and ratified (with reservations) the Convention on the Rights of the Child, the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities. The government often enacts laws that contravene civil liberties guarantees in the Federal Constitution of Malaysia under the guise of national security or preserving national harmony. Examples of these laws include the  Security Offences (Special Measures) Act (SOSMA) of 2012, Prevention of Crime Act (POCA) of 1959, and the Prevention of Terrorism Act of 2015, all of which contain provisions for prolonged pretrial detention that undermine the right to a fair trial. In addition, the POCA and Prevention of Terrorism Act do not require trial by a competent judicial body, while the Sedition Act of 1948 has restrictions on freedom of expression and the Communications and Multimedia Act of 1998 disproportionately restricts individual rights to free speech. There are also other restrictions against media and publications under the  Printing Presses and Publications Act of 1984.

In 2018, the Barisan Nasional administration was ousted after 61 years in power, marking the first ever transition of the Federal Government of Malaysia. Since the historic election on May 9, 2018, the change in administration has brought about substantive changes to the direction of governance and radically shifted the dynamics of the government. However, many of the new administration’s proposed reforms have yet to materialize.

While many of the long-awaited legal reforms promised by the new administration have not yet been enacted, the government seems to have ended the general policy of harassment and rejection of civil society and human rights defenders after the series of investigations under the Sedition Act. Most, if not all, prosecutions of human rights defenders initiated by the Barisan Nasional administration have also been withdrawn.

The federal opposition led by the Barisan Nasional coalition, which has taken a turn to the far right and strengthened its advocacy and messaging based on race, religion, and the sovereignty of the monarch, has been revived through a new political alliance with the Islamic Party of Malaysia. This new collaboration has managed to further divert the government’s agenda, but an upcoming election will likely test the strength of this partnership.

Organizational FormsSocietiesCompanies limited by guarantee
Registration BodyRegistrar of Societies (ROS)Companies Commission of Malaysia
Approximate Number52,980 registered societies with 67,013 branches (as of December 31, 2013)Unknown
Barriers to EntryProhibition 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 ActivitiesVague 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 AdvocacyRestrictions 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 ContactGovernment authority to prohibit society from having contact with anyone outside Malaysia.None
Barriers to ResourcesNoneNone
Barriers to AssemblyFive-days advance notification (due to a July 4, 2019 amendment), excessive force has been used against protesters. Organizers are often called for investigations post-assembly.

No assemblies allowed on “public places,” such as roads.

Five-days advance notification (due to a July 4, 2019 amendment), excessive force has been used against protesters. Organizers are often called for investigations post-assembly.

No assemblies allowed on “public places,” such as roads.

Population31,931,591 (2018 est.)
CapitalKuala Lumpur
Type of GovernmentConstitutional monarchy
Life Expectancy at BirthMale: 71.97 years
Female: 77.73 years (2012 est.)
Literacy RateMale: 70.16%
Female: 76.87% (2011 est.)
Religious GroupsMuslim (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 GroupsMalay 50.1%, Chinese 22.6%, indigenous 11.8%, Indian 6.7%, other 0.7%, non-citizens 8.2% (2010 est.)
GDP per capita$11,239 (2018 est.) (World Bank)

Source: CIA World Factbook

Ranking BodyRankRanking Scale
(best – worst possible)
UN Human Development Index57 (2018)1-182
World Bank Rule of Law Index65 (2018)100 – 0
World Bank Voice & Accountability Index34 (2018)100 – 0
Transparency International61 (2018)1-168
Freedom House: Freedom in the WorldStatus: Partly Free
Political Rights Score: 4
Civil Liberties Score: 4 (2018)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index116 (2018)178 – 1

International and Regional Human Rights Agreements

Key International AgreementsRatification*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)Yes1995
Optional Protocol to the Convention on the Elimination of Discrimination Against WomenNo
Convention on the Rights of the Child (CRC)Yes1995
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)Yes2008

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

Organizational Forms

There are three main legal entity forms for CSOs: 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” with a minimum of 7 persons. A CSO can only formally register under the Act if it does not have a primary purpose of making of monetary gain/profit.
Companies limited by guarantee are governed by the Companies Act of 1965 if their purposes 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 to promoting its purposes.

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 decides 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 – a trust must be open to everyone, and at least 50% of trustees cannot be associated with the organization and its founders – too difficult to reconcile with the management of their day-to-day activities.

Public Benefit Status

Most organizations created for public benefit will be tax exempt.  These include public or benevolent institutions; society/institutions engaged in research on the causes, prevention, or cure of diseases, socio-economic research, or technical or vocational training; not-for-profit Malaysian religious institutions/organizations established exclusively for the purposes of religious worship or the advancement of religion; organizations established exclusively to administer a public fund solely for the relief of distress among members of the public; organizations that maintain or assist in maintaining a zoo, museum, or art gallery or are engaged in the promotion of culture or the arts; organizations 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 Finance 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. 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 Companies Commission of Malaysia (CCM) registers and regulates all companies in Malaysia, including CSOs registered or incorporated as companies limited by guarantee. CCM carries out enforcement activities under the Companies Act of 1965 (CA 1965).

The Registrar of Societies (ROS) 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 of 1966 (SA 1966).  As of November 30, 2011, there were 47,636 local societies and 70,300 branches registered under the ROS nationwide. In 2011 alone, the ROS rejected 229 applications to register societies. As of March 22, 2018, the ROS has approved the registration applications of 1,124 societies and rejected 711, with 308 awaiting approval.

Liga Pemuda (Youth League), a rights-centric youth organization, attempted registration in early 2018. By March 2019, the individuals who submitted the application had been notified the application was under review by the Royal Malaysian Police’s Special Branch. In July 2019, the initial application for registration under the name of Liga Rakyat Malaysia (League for the Malaysian Peoples) was rejected. The organization attempted registration again in July 2019, and the application was immediately placed under review by the Special Branch, where it is pending as of September 2019.

Registration Requirements for Societies

Mandatory Registration. The SA 1966 prohibits the formation or operation of unregistered groups and states that committing a breach of the provision and carrying out activities through unregistered organizations will incur a penalty of up to RM5,000, plus an additional RM500 for every day of continuing default. For example, the Hindu Rights Action Task Force (HINDRAF), which was established in 2005, never registered as a society. After several government warnings, 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.

Eligible Founders. The SA 1966 requires a minimum of seven founders to establish a society. It 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. Minors may be members under the SA 1966, 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.”

Registration Procedures.  At the inaugural meeting, the seven founders must agree on several formalities regarding the formation of the society: its name, registered place of business, insignia, aims and objects, and appointed office-bearers. The constitution of the society must include these items. The founders must then submit an application with all documents to the ROS and pay a small fee. The ROS sets no fixed time period to decide upon a registration application, and in practice, waiting periods can be excessive.

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

  • 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.”
  • 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.”

The Registrar may also 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.  Section 18 of the SA 1966 governs the right to appeal. 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 Registrar’s decision to appeal to the Minister.  The Minister/ Head Registrar, whose decision will be final, may confirm, reject or alter the decision of the sub-Registrar.

For instance, in the run-up to a rally demanding electoral reforms that he organized for July 9, 2011, former Home Minister Hishammuddin Hussein declared the Coalition for Clean and Fair Elections (BERSIH 2.0) an unlawful society. 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.” On July 8, the steering committee for BERSIH 2.0 filed 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 and no new applications for judicial review were filed, another opportunity presented itself after, in an apparent change of stance, the same Home Minister said in a press conference that the BERSIH 3.0 rally planned for April 28, 2012 would be allowed as it was not a security threat. 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. This application was rejected, however, and since 2018 BERSIH 2.0 has operated as a registered company under the CA.

Registration Requirements for Companies

Companies need a minimum of two founding directors between 18 and 70 years of age whose principal place of residence is Malaysia. Under the CA 1965, 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 that have not carried on any business transaction or activity since their incorporation. Alternatively, for a completely new registration, a name search is conducted to determine the availability of the name. Incorporation documents must be sent to CCM within three months of the name’s approval. CCM pledges incorporation within one day. Anyone dissatisfied with the decision of the Registrar of Companies may appeal to the Court within 30 days. Under the CA 1965, CSOs have 30 days to submit an appeal to the Court concerning a decision by the Registrar to refuse registration.

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 societies 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.

Alternatively, foreign CSOs may exist as companies limited by guarantee under CA 1965. One limit However, two founding directors must have Malaysia as their primary place of residence. The procedures for incorporation of foreign companies are extremely similar to those for the standard form of incorporation described above.

One foreign organization that has faced difficulties registering is Amnesty International’s Malaysia chapter, which remains unregistered as a society despite numerous applications since 1998. Its sixth application, filed in 2006, was rejected by the ROS. Since 2018, Amnesty International’s Malaysia chapter has operated as an incorporated company under the CA.

Students

The Universities and University Colleges Act (UUCA) of 1971, Section 15, mandated university approval for student associations. However, the Universities and University Colleges (Amendment) Act of 2012, which came into force on August 1, 2012, amended Section 15 of the UUCA. The amendments allowed students to join political parties and campaign as candidates in elections as long as they were not engaging in political activities on campus. However, the UUCA was amended again in December 2018 alongside the Private Higher Educational Institutions Act of 1996 (PHEIA) and the Education Institutions (Discipline) Act of 1976 (EIDA). The removal of Section 15(2)(c) of UUCA, Section 47(2)(c) of PHEIA, and Section 10(2)(c) of EIDA effectively granted students the right to take part in political activities on campus. Disciplinary action against students for participation in on-campus political activities under the Acts was discontinued when those amendments took effect on January 18, 2019.

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 society may not advocating anything that is illegal or unconstitutional. They 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.

Throughout the SA 1966, there is repeated emphasis on maintaining welfare, peace, security, public order, and morality in Malaysia, and in practice this acts as a barrier to a registered society’s operational activity.  Under the SA 1966, regulatory authorities have the statutory power to revoke a registered society’s certificate of incorporation, suspend any or all activities, or seek involuntary dissolution if the organization is found to be carrying out unlawful activities or activities incompatible with the provisions of the Act. Authorities may even prohibit registered societies from associating, or even communicating, with foreign persons. The ROS may also prohibit registered societies’ use of illegal or undesirable badges and insignia.

The ROS may search and inspect all books, accounts, meeting minutes, and other documents kept by the society if the ROS suspects the society has violated the SA 1966. 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 society’s place of business without prior notice and use force in the process. Authorities may even search persons suspected of hiding evidence and may seize and hold relevant documents.

Within 60 days of holding its annual general meeting (or within 60 days after the end of each calendar year), a registered society is required 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. 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. The Act states that a registered society should be given a minimum period of seven days to fulfill that requirement, a relatively short time that has resulted in many CSOs facing de-registration.

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 conferred to him under Section 67(1). 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. A fine not exceeding RM5,000 shall be incurred for failure to furnish annual reports. A fine not exceeding RM3,000 shall be incurred for changing the place or business or rules of the society without notifying the Registrar.  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.

Constraints on Companies

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

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

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 was concern that the ban was retribution for COMANGO’s submission during the second cycle of Malaysia’s Universal Periodic Review before the UN Human Rights Council in October 2013. However, the government later deleted the section of the statement declaring the group illegal. Home Minister Ahmad Zahid Hamidi similarly declared another coalition of over 80 Malaysian NGOs, Negara-Ku, illegal on July 26, 2014, as it was not registered with the Registrar of Societies. Negara-Ku has challenged this declaration as contrary to a decision of the Kuala Lumpur High Court in overturning a similar declaration regarding Bersih in 2012. The High Court declared that that unregistered societies can function if they are “not a threat to national security, public order and morality.”

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, 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, the Sedition Act of 1948, Communications and Multimedia Act of 1998, and the Printing Presses and Publications Act of 1984 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 of 2012 and the Penal Code.  In addition, the judiciary’s lack of independence, notwithstanding repeated commitments by chief judiciaries, has meant that CSOs do not have an independent redress mechanism when their space is threatened.

Since 2014, there has been an increase in the use of the Sedition Act to prosecute individuals and quell free speech. This has continued despite the May 2018 administration change, as the Royal Malaysian Police still subject activists and human rights defenders to harassment. The arrest of Siti Kassim, a prominent human rights defender and lawyer, marked the first known case of an activist arrested under the new administration. The police arrested and detained her on June 23, 2018 after they broke into her house and alleged that she attempted to kidnap one of her clients, who was supposedly a mentally unstable person. Siti Kassim was released one day later. Apart from Siti Kassim’s arrest, there have been other incidents of concern. For example, in March 2018 Sevan Doraisamy, the executive director of SUARAM, was called for questioning under the Peaceful Assembly Act of 2012 for holding a rally in the run-up to the 14th General Election in May 2018.
Penal Code 

On July 31, 2012, the Penal Code (Amendments) Act 2012 came into force. The Amendment Act introduced 13 additional clauses to Section 124 of the Penal Code. Section 124 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 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 imposes a prison term of 10 years for those who received such documents but do not turn them over to the police.

In addition, the bill criminalizes, among other things, offences of sabotage, espionage, dissemination of false reporting, and dissemination of information that incites violence or counsels 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.

In response to public concerns that the Penal Code (Amendment) Act 2013 that, which expanded the types of offences under Section 124 of the Penal Code, would be abused, the de facto law minister Nazri Aziz declared that the Penal Code would only be used to deal with violent offences such as the assassination of a head of state, coup d’état, armed insurgency, guerrilla warfare, and breaches of constitutional provisions.

On December 31, 2014, the Penal Code (Amendment) Act 2013 came into force. The new Section 203A makes 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 that 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.

As a result of legal challenges to the constitutionality of the Sedition Act, such as the case of Azmi Sharom, who was acquitted at the Federal Court in 2016, the police have increasingly used Section 124 of the Penal Code provisions activities detrimental to parliamentary democracy to clamp down on critics of the government. This trend started as early as July 2015, when two members of parliament, Tony Pua and Rafizi Ramli, were probed under Section 124B in relation to allegations that they were involved in the tampering and fabrication of documents related to the 1 MDB scandal in order to oust Prime Minister Najib.

Security Offences (Special Measures) Act, 2012 (SOSMA)
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, 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” 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 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), 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)).

The growing public pressure for the abolishment of SOSMA alongside hunger strikes by detainees has put pressure on the government to repeal or amend it. Some of the detainees who were detained on allegations of affiliation with organized criminal groups and are still on trial process had the benefit of having their charges amended while others who are on trial for terrorism offences or have already been sentenced continue to be detained under SOSMA provisions.

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 groups, as well as the Human Rights Commission of Malaysia (SUHUKAM). The government deemed the amendments necessary to protect the security of the state. The amendments add Section 114(A), which holds Internet account holders and intermediaries liable for content published through their accounts or services. Under this provision, if an anonymous person posts content deemed offensive or illegal using another person’s Internet account, the account holder will be held liable unless proven otherwise. In other words, the burden of proof is placed on Internet account holders and intermediaries have the burden of proof, rather than the prosecutor/investigator.

Printing Presses and Publications (Amendment) Act, 2012
As part of the government’s efforts to improve its public image with regard to respect for civil liberties and media freedom, it enacted the Amendments to the Printing Presses and Publications Act (PPPA), which entered into force on July 15, 2012. Most significantly, the amendments eliminate the requirement for printing presses and publications, including newspapers, to renew their permits annually, and publishers are allowed to challenge in court any decisions by the Home Affairs Minister to revoke or suspend permits.

Although this is an 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, and he still has the power to revoke it at any time. For instance, in October 2012, independent online news portal Malaysiakini, which had been in business for thirteen years, successfully challenged the Home Affairs Minister’s rule that prohibits granting it a printing license. 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 of 1984. The Home Minister rejected the request in August 2010 on the grounds that the publishing permit is a privilege, not a right. Meanwhile pro-government newspapers and publications such as Utusan Malaysia, New Straits Times, and Suara Perkasa had their licenses renewed. The decision to refuse Malaysiakini’s permit application was met with criticism from various civil society organizations. 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. The Court also affirmed that the permission to publish the printed version of the newspaper is a fundamental liberty. This ruling is seen as a significant development for freedom of expression and freedom of press in Malaysia.

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 create 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 believes this 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 the 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 allows the government to restrict international contact by alluding to the need to maintain ethnic and religious harmony.

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. [1] Since 2017, there has also been a growing trend of barring regional regional and international human rights defenders and activists from travelling into Malaysia for human rights work. This includes the deportation and denial of entry of Joshua Wong of Hong Kong in 2015, Mugiyanto of Indonesia in January 2016, and Han Hui Hui of Singapore and Adilur Rahman Khan of Bangladesh in 2017. In 2018, however, most human rights defenders who were on immigration blacklist have been removed. In Adilur Rahman Khan’s case, for example, the Human Rights Commission of Malaysia pursued the matter with the Immigration Department of Malaysia, which revealed that the instruction for the blacklist was made by the Special Branch of the Police. Upon further inquiries to the Royal Malaysian Police, the police confirmed the blacklisting but refused to provide any additional information for the initial imposition and subsequent removal from the list. The police also refused to meet the Commission to discuss the matter.

[1] In theory this should refer to Intra-Malaysia travel, but when Malaysians from Peninsular Malaysia to Sabah and Sarawak they are required to provide their passports and identification cards upon entry and require work visas to work within those two states.

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, CSOs receiving foreign funds are often demonized by both the government and the government-controlled media as being “foreign agents.”

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 of 2012 (PAA) regulates holding 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:
(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, non-citizens do not enjoy the right to assemble. 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.
Another similar case in 2017 involved 44 Rohingya refugees who were detained while protesting atrocities in Rakhine State, Myanmar. The Kuala Lumpur police chief at the time was reported to have said the gathering was illegal because it involved foreigners.
In addition, anyone below 21 years of age is prohibited from organizing assemblies, and anyone under 15 years of age is not allowed to participate in assemblies.

Advance Notification
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. However, in July 2019, Parliament passed amendments that aimed to reform three main areas of PAA. The amendments reduced the advance notice requirement to 5 days but did not create an exception for spontaneous protests. Because they do not allow protests to take place immediately or spontaneously after triggering events, the overall impact of the amendments is unclear. For instance, in March 2019 the Minister for Religious Affairs, Mujahid Rawa, did not provide notice 10 days prior to organizing a solidarity rally following the mosque shooting in New Zealand. Even with the new amendments in force, Mujahid Rawa would have still failed to even meet the required 5 days’ notice.

The amendment did not introduce any new criteria for spontaneous protests, however. The practicality of the amendment is therefore questionable because it failed to address solidarity action often taking place immediately or spontaneously after events, such as the solidarity march that took place in March 2019 when the Minister for Religious Affairs, Mujahid Rawa, did not provide notice 10 days prior to organizing a solidarity rally following the mosque shooting in New Zealand. Even with the new amendments in force, Mujahid Rawa would have still failed to even meet the required five-days notice.

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 of 1959, which was amended in 2006. This Act states that “if as respects any area 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 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 faces imprisonment for up to six months, or a fine, or both. Those who join or continue in an unlawful assembly, knowing that the 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.

In addition, the amendments also introduced a system to replace PAA’s current punitive measures by allowing the police in charge of a district the power to issue a compound (fine) of RM5,000 ($1,200) to organizers and participants violating PAA provisions. The compound can only be issued with the written permission of a public prosecutor. However, the compound does not fully remove the possibility of criminal action against organizers and participants. If a person fails to pay the compound in the stipulated time period determined by the police, he or she can be criminally prosecuted. As the public prosecutor grants a written permission for the compound to be issued, prosecution would likely take place if an offender fails to pay the compound issued.

Excessive Force 
Malaysian authorities have used excessive force in response to public demonstrations.  For example, 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 held for five days. The police were accused of using unnecessary and excessive force in dealing with peaceful protesters. One protester said the police used iron knuckles while beating them. Many witnesses also stated that police officers beat protesters in a police truck, even though the protesters were already handcuffed from behind and defenseless. One protester suffered serious injuries and was admitted to the ICU and was later diagnosed with celebral concussion.

Organizational Forms

There are three main legal entity forms for CSOs: 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” with a minimum of 7 persons. A CSO can only formally register under the Act if it does not have a primary purpose of making of monetary gain/profit.
Companies limited by guarantee are governed by the Companies Act of 1965 if their purposes 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 to promoting its purposes.

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 decides 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 – a trust must be open to everyone, and at least 50% of trustees cannot be associated with the organization and its founders – too difficult to reconcile with the management of their day-to-day activities.

Public Benefit Status

Most organizations created for public benefit will be tax exempt.  These include public or benevolent institutions; society/institutions engaged in research on the causes, prevention, or cure of diseases, socio-economic research, or technical or vocational training; not-for-profit Malaysian religious institutions/organizations established exclusively for the purposes of religious worship or the advancement of religion; organizations established exclusively to administer a public fund solely for the relief of distress among members of the public; organizations that maintain or assist in maintaining a zoo, museum, or art gallery or are engaged in the promotion of culture or the arts; organizations 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 Finance 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. 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 Companies Commission of Malaysia (CCM) registers and regulates all companies in Malaysia, including CSOs registered or incorporated as companies limited by guarantee. CCM carries out enforcement activities under the Companies Act of 1965 (CA 1965).

The Registrar of Societies (ROS) 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 of 1966 (SA 1966).  As of November 30, 2011, there were 47,636 local societies and 70,300 branches registered under the ROS nationwide. In 2011 alone, the ROS rejected 229 applications to register societies. As of March 22, 2018, the ROS has approved the registration applications of 1,124 societies and rejected 711, with 308 awaiting approval.

Liga Pemuda (Youth League), a rights-centric youth organization, attempted registration in early 2018. By March 2019, the individuals who submitted the application had been notified the application was under review by the Royal Malaysian Police’s Special Branch. In July 2019, the initial application for registration under the name of Liga Rakyat Malaysia (League for the Malaysian Peoples) was rejected. The organization attempted registration again in July 2019, and the application was immediately placed under review by the Special Branch, where it is pending as of September 2019.

Registration Requirements for Societies

Mandatory Registration. The SA 1966 prohibits the formation or operation of unregistered groups and states that committing a breach of the provision and carrying out activities through unregistered organizations will incur a penalty of up to RM5,000, plus an additional RM500 for every day of continuing default. For example, the Hindu Rights Action Task Force (HINDRAF), which was established in 2005, never registered as a society. After several government warnings, 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.

Eligible Founders. The SA 1966 requires a minimum of seven founders to establish a society. It 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. Minors may be members under the SA 1966, 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.”

Registration Procedures.  At the inaugural meeting, the seven founders must agree on several formalities regarding the formation of the society: its name, registered place of business, insignia, aims and objects, and appointed office-bearers. The constitution of the society must include these items. The founders must then submit an application with all documents to the ROS and pay a small fee. The ROS sets no fixed time period to decide upon a registration application, and in practice, waiting periods can be excessive.

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

  • 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.”
  • 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.”

The Registrar may also 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.  Section 18 of the SA 1966 governs the right to appeal. 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 Registrar’s decision to appeal to the Minister.  The Minister/ Head Registrar, whose decision will be final, may confirm, reject or alter the decision of the sub-Registrar.

For instance, in the run-up to a rally demanding electoral reforms that he organized for July 9, 2011, former Home Minister Hishammuddin Hussein declared the Coalition for Clean and Fair Elections (BERSIH 2.0) an unlawful society. 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.” On July 8, the steering committee for BERSIH 2.0 filed 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 and no new applications for judicial review were filed, another opportunity presented itself after, in an apparent change of stance, the same Home Minister said in a press conference that the BERSIH 3.0 rally planned for April 28, 2012 would be allowed as it was not a security threat. 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. This application was rejected, however, and since 2018 BERSIH 2.0 has operated as a registered company under the CA.

Registration Requirements for Companies

Companies need a minimum of two founding directors between 18 and 70 years of age whose principal place of residence is Malaysia. Under the CA 1965, 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 that have not carried on any business transaction or activity since their incorporation. Alternatively, for a completely new registration, a name search is conducted to determine the availability of the name. Incorporation documents must be sent to CCM within three months of the name’s approval. CCM pledges incorporation within one day. Anyone dissatisfied with the decision of the Registrar of Companies may appeal to the Court within 30 days. Under the CA 1965, CSOs have 30 days to submit an appeal to the Court concerning a decision by the Registrar to refuse registration.

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 societies 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.

Alternatively, foreign CSOs may exist as companies limited by guarantee under CA 1965. One limit However, two founding directors must have Malaysia as their primary place of residence. The procedures for incorporation of foreign compa