Section 1. Respect for the Integrity of the Person, Including Freedom from:
There were reports the government or its agents committed arbitrary or unlawful killings. According to the National Human Rights Commission (SUHAKAM), 521 persons died in prison from 2015 through 2016, while more than 100 individuals died in immigration detention centers. The government claimed that deaths in police custody, particularly those caused by police, were rare, but civil society activists disputed this claim. In a 2018 report on custodial deaths, the nogovernmental organization (NGO) Lawyers For Liberty described a “broken system that abets the perpetrators of these crimes.”
Early in the year, the government’s Enforcement Agency Integrity Commission (EAIC) determined that police were guilty of “serious misconduct” in relation to the 2017 death of a man in police custody. The EAIC also found that closed-circuit cameras in the police station were nonfunctional. No further action was taken.
In March a 39-year-old man was found dead in a police detention center. A police official stated the incident was believed to have been caused by negligence and would be investigated. No further action was taken.
Investigation into use of deadly force by a police officer occurs only if the attorney general initiates the investigation or if the attorney general approves an application for an investigation by family members of the deceased. When the attorney general orders an official inquiry, a coroner’s court convenes, and the hearing is open to the public. In such cases, courts generally issued an “open verdict,” meaning that there would be no further action against police.
In January the inspector general of police informed SUHAKAM that police had charged a man with the February 2017 abduction of Christian pastor Raymond Koh. Police noted that the law bars SUHAKAM from investigating any complaint that is the subject of a court proceeding, after which SUHAKAM announced it would “immediately cease” its public inquiry into the matter. Some civil society members believed the arrest was an attempt by police to stop SUHAKAM’s public inquiry into Koh’s disappearance. SUHAKAM announced in May it would reopen its investigation, although little progress was made in the case.
Police also made little progress in investigating the separate disappearances in November 2016 of Christian pastor Joshua Hilmy and his wife Ruth, and of Amri Che Mat, a Muslim activist alleged to be linked to Shiite teachings. SUHAKAM continued public inquiries into the disappearances.
No law specifically prohibits torture; however, laws that prohibit “committing grievous hurt” encompass torture. More than 60 offenses are subject to caning, sometimes in conjunction with imprisonment, and judges routinely mandated caning as punishment for crimes including kidnapping, rape, robbery, and nonviolent offenses such as narcotics possession, criminal breach of trust, migrant smuggling, immigration offenses, and others.
Civil and criminal law exempt men older than age 50, unless convicted of rape, and all women from caning. Male children between ages 10 and 18 may receive a maximum of 10 strokes of a “light cane” in a public courtroom.
Some states’ sharia provisions, which govern family issues and certain crimes under Islam and apply to all Muslims, also prescribe caning for certain offenses. Women are not exempt from caning under sharia, and national courts have not resolved conflicts between the constitution, the penal code, and sharia.
In August a sharia court in Terengganu State sentenced a woman to six months in jail and six strokes of the cane for prostitution. No charges were filed against the woman’s alleged client.
Civil laws in Kelantan State allow courts to sentence individuals to public caning for certain civil offenses, although there were no reports of such punishment in the state.
Prison and Detention Center Conditions
Conditions in prisons and detention centers operated by the government’s Immigration Department were harsh. In 2017 SUHAKAM described the conditions at one police detention center as “cruel, inhumane, and degrading.” In January SUHAKAM made a follow-up visit to a police detention center in Johor State that it recommended be closed due to poor conditions. According to SUHAKAM, “conditions of the lock-up remain unchanged and unsatisfactory.”
Physical Conditions: Overcrowding in prisons and immigration detention centers, particularly in facilities near major cities, remained a serious problem. According to the Home Ministry, 20 of the country’s 37 prisons were overcrowded.
In April Thanabalan Subramaniam, age 38, died in police custody in Selangor State; a postmortem could not determine the cause of death but found no signs of abuse. According to Amnesty International, the incident “shows that the authorities, at the very least, are (sic) not proactive in ensuring that [the inmate] received immediate and comprehensive medical treatment in case of an emergency or health hazard. His death also suggests that standard operating procedures put in place for these kind of situations may have been neglected.”
Administration: The law allows for investigations into allegations of mistreatment; however, this did not always function in practice. Law enforcement officers found responsible for deaths in custody do not generally face punishment. In August the lawyer for a man who died in police custody in 2014 said no investigation was conducted into his client’s death, which the EAIC’s investigations revealed was caused by police beatings.
Authorities restricted rights to religious observance for members of Islamic sects the government banned as “deviant.”
Independent Monitoring: Authorities generally did not permit NGOs and media to monitor prison conditions; the law allows judges to visit prisons to examine conditions and ask prisoners and prison officials about conditions. The government provided prison access to the EAIC, the International Committee of the Red Cross, and SUHAKAM, on a case-by-case basis.
The Office of the United Nations High Commissioner for Refugees (UNHCR) generally had access to registered refugees and asylum seekers, and to unregistered persons of concern who may have claims to asylum or refugee status held in immigration detention centers and prisons. This access, however, was not always timely.
The law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements. Police may use certain preventive detention laws to detain persons suspected of terrorism, organized crime, gang activity, and trafficking in drugs or persons without a warrant or judicial review for two-year terms, renewable indefinitely. Within seven days of the initial detention, however, police must present the case for detention to a public prosecutor. If the prosecutor agrees “sufficient evidence exists to justify” continued detention and further investigation, a fact-finding inquiry officer appointed by the minister of home affairs must report within 59 days to a detention board appointed by the king. The board may renew the detention order or impose an order to restrict, for a maximum of five years, a suspect’s place of residence, travel, access to communications facilities, and use of the internet. Details on the numbers of those detained or under restriction orders were not generally available.
In other cases the law allows investigative detention to prevent a criminal suspect from fleeing or destroying evidence during an investigation.
Immigration law allows authorities to arrest and detain noncitizens for 30 days pending a deportation decision.
ROLE OF THE POLICE AND SECURITY APPARATUS
The Royal Malaysia Police force, with approximately 102,000 personnel, reports to the home affairs minister. The inspector general of police is responsible for organizing and administering the police force. The Ministry of Home Affairs also oversees immigration and border enforcement and the People’s Volunteer Corps, a paramilitary civilian organization. NGOs remained concerned inadequate training left corps members poorly equipped to perform their duties.
State-level Islamic religious enforcement officers have authority to accompany police on raids or conduct their own raids of private premises and public establishments to enforce sharia, including bans on indecent dress, alcohol consumption, sale of restricted books, or close proximity to unrelated members of the opposite sex. Religious authorities at the state level administer sharia for civil and family law through Islamic courts and have jurisdiction for all Muslims.
Civilian authorities at times did not maintain effective control over security services. The government has some mechanisms to investigate and punish abuse and the EAIC and SUHAKAM played a role in investigating alleged abuses committed by the security forces (see section 1.b.). NGOs and media reported that, despite investigation into some incidents, security forces often acted with impunity.
Police officers are subject to trial by criminal and civil courts, but convictions were infrequent. Police representatives reported disciplinary actions against police officers; punishments included suspension, dismissal, and demotion. Police training included human rights awareness in its courses. SUHAKAM also conducted human rights training and workshops for police and prison officials. In October the inspector general of police stated 72 police personnel were fired and 1,484 others were disciplined during the year through September for such offenses as “abuse of power, negligence, failure to report for duty, as well as criminal activities.”
ARREST PROCEDURES AND TREATMENT OF DETAINEES
The law permits police to arrest and detain individuals for some offenses without a warrant, even outside situations of a crime in progress or other urgent circumstances. To facilitate investigations, police can hold a suspect for 24 hours, which can be extended for a maximum 14 days by court order under general criminal law provisions. NGOs reported a police practice of releasing suspects and then quickly rearresting them in order to continue investigative custody without seeking judicial authorization. In August the lawyer for a person suspected of criminal breach of trust claimed police held his client in custody for more than 40 days without any charges, repeatedly extending the remand order by moving the suspect from one jurisdiction to another. A local human rights NGO described the extended detention as “excessive and [an] abuse of power” by police.
Some NGOs asserted that a police approach of “arrest first, investigate later” was prevalent, particularly in cases involving allegations of terrorism. By law a person must be informed of the grounds for arrest by the arresting officer.
Bail is usually available for persons accused of crimes not punishable by life imprisonment or death. The amount and availability of bail is at the judge’s discretion. Persons granted bail usually must surrender their passports to the court.
Police must inform detainees of the rights to contact family members and consult a lawyer of their choice. Nonetheless, police often denied detainees’ access to legal counsel and questioned suspects without allowing a lawyer to be present. Police justified this practice as necessary to prevent interference in investigations in progress, and the courts generally upheld the practice.
While authorities generally treated attorney-client communications as privileged, in 2017 the Federal Court, the country’s highest court, ruled that Malaysian Anticorruption Commission officials could question lawyers who accompanied their clients to commission hearings (which are nonjudicial) about their interaction with their clients and the content of their discussions.
Police sometimes did not allow detainees prompt access to family members or other visitors.
The law allows the detention of a material witness in a criminal case if that person is likely to flee.
Arbitrary Arrest: Authorities sometimes used their powers to intimidate and punish opponents of the government. Activists and government critics were often subject to late-night arrests, long hours of questioning, and lengthy remand periods, even if they were not ultimately charged with an offense. According to SUHAKAM, police raided the home of lawyer and civil society activist Siti Kasim in June “without the police adequately and reasonably investigating the factual circumstances of the case.”
Pretrial Detention: Crowded and understaffed courts often resulted in lengthy pretrial detention, sometimes lasting several years. The International Center for Prison Studies reported that pretrial detainees made up approximately 26 percent of the prisoner population in mid-2015.
Detainee’s Ability to Challenge Lawfulness of Detention before a Court: Detainees have the right to challenge their detention by filing a habeas corpus application, although they were rarely successful, especially when charged under preventive detention laws.
e. Denial of Fair Public Trial
Three constitutional articles provide the basis for an independent judiciary; however, other constitutional provisions, legislation restricting judicial review, and executive influence over judicial appointments limited judicial independence and strengthened executive influence over the judiciary. The judiciary frequently deferred to police or executive authority in cases those parties deemed as affecting their interests.
Members of the Malaysian Bar Council, NGO representatives, and other observers expressed serious concern about significant limitations on judicial independence, citing a number of high-profile instances of arbitrary verdicts, selective prosecution, and preferential treatment of some litigants and lawyers.
According to Lawyers for Liberty, the former government was guilty of “concerted attempts to politicize the judiciary,” including forcing judicial officers to attend a political lecture in May 2017 “in flagrant breach of the doctrine of separation of powers and the concept of an independent judiciary.”
In August court of appeal judge Hamid Sultan Abu Backer said he was “severely reprimanded” by an unnamed senior judge for dissenting in a high-profile case and was never again assigned to hear public interest cases related to constitutional matters.
The constitution provides for the rights to a fair and public trial, and the judiciary generally enforced this right. The civil law system is based on British common law and defendants are presumed innocent until proven guilty. Defendants have the right to be informed promptly of the charges against them and the right to a timely trial and the right to be present at their trial. Defendants have the right to communicate with an attorney of their choice or to be appointed counsel at public expense if they face charges that carry the death penalty. Defendants also may apply for a public defender in certain other cases.
According to the Malaysian Bar Council, defendants generally had adequate time and facilities to prepare a defense if they had the means to engage private counsel. Otherwise, defendants must rely on legal aid and the amount of time to prepare for trial is at the discretion of the judge. Authorities provide defendants free interpretation in Mandarin, Tamil, and some other commonly used dialects from the moment charged through all appeals. The right to confront witnesses is limited by provisions allowing the identity of prosecution witnesses to be kept secret from the defense before a trial, which inhibits cross-examination of those witnesses. Defendants may present witnesses and evidence on their behalf. Limited pretrial discovery in criminal cases also impeded the defense. Strict rules of evidence apply in court. Defendants cannot be compelled to testify or confess guilt.
Defendants may appeal court decisions to higher courts, but only if the appeal raises a question of law or if material circumstances raise a reasonable doubt regarding conviction or sentencing. The Malaysian Bar Council claimed these restrictions were excessive.
In cases related to terrorism or national security, the law allows police to hold persons even after acquittal against the possibility of appeal by the prosecution.
Many NGOs complained women did not receive fair treatment from sharia courts, especially in cases of divorce and child custody (see section 6).
POLITICAL PRISONERS AND DETAINEES
In May opposition leader Anwar Ibrahim was released from detention after receiving a full royal pardon for consensual sodomy, a charge he denied and many international observers and human rights organizations viewed as politically motivated. Until his release, authorities generally permitted Anwar’s lawyers and family to visit him; however, in April prison authorities banned attorney Latheefa Koya from seeing Anwar because she violated prison regulations by allegedly releasing a statement to the press in which Anwar purportedly criticized a controversial bill in parliament. Family members said prison officials at times limited Anwar’s access to medical treatment for a shoulder injury.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals or organizations may sue the government and officials in court for alleged violations of human rights; however, a large case backlog often resulted in delays in civil actions, to the disadvantage of plaintiffs. The courts have increasingly encouraged the use of mediation and arbitration to speed settlements.
Laws prohibit such actions; nevertheless, authorities sometimes infringed on citizens’ privacy. Under national security laws, police may enter and search the homes of persons suspected of threatening national security without a warrant. The government monitored the internet and threatened to detain anyone sending or posting content the government deemed a threat to public order or security (see section 2.a.).
Islamic authorities may enter private premises without a warrant to apprehend Muslims suspected of engaging in offenses such as gambling, consumption of alcohol, and sexual relations outside marriage.
The government does not recognize marriages between Muslims and non-Muslims and considers children born of such unions illegitimate.
In 2017 the court of appeal ruled that the National Registration Division was not bound by an edict issued by the National Fatwa Committee that declared children to be illegitimate, and therefore unable to take their father’s name, if they were born fewer than six months after the parents’ marriage. The government, however, appealed the case and successfully applied for a stay. The case remained pending.