Sunday, November 19, 2017

The origins of the labour movement in M’sia (Part 2 of a series)

The origins of the labour movement in M’sia

Published:     Modified:

Editor’s note: This is part two of a series on the Malaysian labour movement.

FEATURE | The fact that the Malaysian trade unions movement played a significant role in the political, economic and sociocultural life of Malaysia has been forgotten by many.

The labour movement did actively struggle for independence from the British colonial powers, and contributed significantly even in the determination of the future of Malaysia, including the drafting of the Malaysian Constitution.

But alas, all that is in the past, and the trade unions have been systematically weakened and isolated from involvement in the life of the nation, first by the British colonial masters and thereafter by the Umno-led coalition that has governed Malaysia since independence.

This weakening, nay, annihilation, of the labour movement still continues today through the actions and omissions of a government that seems to not just have embraced neoliberalism, but is also seen today as being pro-business. Of late, government-owned and controlled companies also are seen to be violating worker rights.

The future of the labour movement in Malaysia now depends on the workers and the trade unions, who really must appreciate the history of the Malaysian labour movement and decide whether they would want to struggle to make the labour movement once again strong and relevant, or just allow the slow withering away of not just the movement, but also worker and trade union rights.  

Origins of union: Protection and promotions of rights

A worker alone is weak, but workers united are strong. Workers have always naturally come to a realisation that only together as workers will they be able to fight and get better rights and justice at their workplace. As such, more likely than not, there have been organised worker solidarity actions in one form or another ever since there have been workers in Malaysia.

For Malaysia, the advent of worker struggle would have been in the rubber plantations and the tin mines (photo), whose labour was primarily workers of Indian and Chinese origins – a reality then when Malay workers resisted working in such mines and plantations, choosing rather self-employment, small businesses, farming, fishing and the civil service. The majority of the workers in the civil service were Malay.



The origins of organised labour in the form of worker unions in Malaysia date back to the 1920s. Workers then, who were primarily of Chinese and Indian origins in the private sector and Malay workers in the civil service, formed what was known as General Labour Unions (GLUs).

GLU membership was generally open to any worker, with no restrictions with regards to any particular industry, sector or workplace, unlike what we have today in Malaysia.

GLUs were generally formed in different geographical areas all around Malaya. They attracted many workers and were strong. In the struggle for rights, history shows that many actions were taken by GLUs, including strikes.

The labour movement then was not restricted to merely employer-employee matters, but also played an active role in the political, economic and sociocultural lives of the country.



The labour movement, together with other pro-independence groups (photo - MPAJA), was also actively involved in the struggle for independence from the British. They were also active in the struggle against Japanese occupation forces during World War II.

An example of a union then was the Selangor Engineering Mechanics Association, which was registered in 1928, and was maybe one of the first registered trade unions in Malaya.

The GLUs and many of the unions also started coming together as coalitions and federations – and finally merged into the Pan-Malayan General Labour Union (PMGLU) and the Singapore GLU.

British moves to weaken labour movement

The British colonial powers, worried about the growing labour movement, decided to try to control and influence it. The British colonial government were especially concerned about the perceived influence that the Malayan Communist Party (MCP) and other pro-independence groups had in the labour movement.

Methods the British employed to weaken and control the labour movement included the enactment of laws like the Trade Union Ordinance of 1940, and the appointment of the Trade Union Advisor.

One of the primary objects of this Trade Union Ordinance was to stabilise the labour situation in the interest of increasing production to sustain Britain's economy and its war efforts. It was not concerned about worker or trade union rights.



The Malayan economy at that time was geared to support the wartime needs of Britain. As such, labour and trade union rights, and existing struggles for better rights had to be suppressed and subordinated to what the British considered more important – Imperial Defence.

Malaya then was considered the “dollar arsenal” for the British empire, and the 1940 Ordinance was enacted for the purpose of ensuring a continued flow of revenue to the British Empire.

The stated object in the title of this 1940 Ordinance was, “An Enactment for the Registration and Control of Trade Unions''. Its declared purpose was the fostering of “the right kind of responsible leadership amongst workers and at the same time to discourage or reduce such influence as the professional agitators may have had and to reduce the opportunities or the excuse for the activities of such persons.''

It was clearly to weaken the existing labour movement, and transform existing trade unions and union leadership into what the British wanted.

The existing worker solidarity was to be destroyed, and a “divide and weaken” policy was the aim. Private sector workers were to be separated from public sector workers, and workers from different industry and sectors were to be kept apart.



The role of unions were to be limited to simply “industrial relations” matters – matters between workers and employers only. Unions were no longer allowed to be involved in matters concerning the nation, including the struggle for independence.

This new Trade Union Ordinance now required unions in Malaya to be registered (or rather re-registered), which meant submitting an application to the government, and receiving government approval prior to registration. This allowed the government not to re-register some of the stronger unions, and federation of unions across different sectors or industries.

As such, the new law prevented government (or public sector) employees and private sector employees from belonging to the same union. The affiliation of unions with other classes of unions was also prevented. Restriction was also imposed on the usage of union funds.

The registration rules were somewhat restrictive. For instance, government employees and non-government employees could not anymore belong to the same union or even to affiliate themselves with unions of other classes of workers. The usage of union funds was also restricted - it could no longer be used for a variety of other purposes, including political purposes.

Under these rules, all the existing GLUs (or even other federations of unions across different sectors, industry or occupation) were not qualified for registration and therefore could no longer operate legally.

The new Trade Union Ordinance and laws that came into force in 1946 effectively killed the GLUs, which could no longer be registered (or re-registered) under the new law, and as such were no longer able to operate legally. It also killed off many stronger unions.

What is of interest was that this new policy and laws did not apply to the union movement in Britain and the UK. It only applied to Malaysia. British unions to date are still involved in political struggles, and even political parties like the Labour Party, in the UK.


This article was first published by Aliran here. Malaysiakini has been authorised to republish it.
Part 1: The state of the labour movement in Malaysia
Part 2: The origins of the labour movement in Malaysia

Read more at https://www.malaysiakini.com/news/402284#MDlgrVFyceD2vyMC.99

Saturday, November 18, 2017

The state of the labour movement in Malaysia (Part 1)

Malaysian people and workers have been 'weakened' by the British colonial government, but alas the UMNO led coalition that governed Malaysia since Independence have continued to weaken and deny rights/freedoms of workers. Many today are unaware of these loss of rights and freedoms, and as such, we need to look back at history to see what happened, how it happened and why? Here, we look at the labour movement in Malaysia - which at one time was very strong, with more than 50% of the total workforce being unionised workers..


The state of the labour movement in Malaysia

Published:     Modified:

Editor's note: This is part one of a series on the Malaysian labour movement.

FEATURE | In Malaysia, the trade union movement seems to be weakening, with the number of unions and unionised workers steadily decreasing.

According to the Trade Union Affairs Department, only 875,193, or six percent, of the 14.5 million workers in the country, are currently union members. Union membership in the private sector also shows a marked decrease, dropping from 433,702 in 2009 to 359,206 in 2017.

Traditionally, trade unions have been controlled by laws, first imposed by the British colonial administration. This practice was continued post-independence by their successors, the Umno-led BN.

Malaysian trade union and labour laws fall far short of minimum international standards.

Even when Malaysia wanted to be part of the Trans-Pacific Partnership agreement (TPPA) – itself perceived to be a threat to labour rights – one of the preconditions was that Malaysia should make significant amendments to its labour laws to bring it up to par with minimum human rights and worker rights standards.

 
 Although the government promised to implement some of the provisions of the TPPA despite the deal falling through, no amendments have been made to labour laws.

When there are violations of worker or trade union rights, many Malaysian unions still do not choose to struggle through pickets, strikes or campaigns against employers.

Instead, they choose to lodge complaints with relevant government institutions, which leads to court actions, and possibly the appeal process, which can last for many years.

Even when workers and unions do win, the remedies are weak, having no real impact on employers nor instrumental in bringing about legislative changes. Employers are very happy with the state of affairs, for this method of industrial dispute resolution does not really impact its business and profits. The only victims are workers and unions.

Surviving within a limited space

What has happened to the trade union movement is an acceptance of the limitations imposed on them by authorities, and a choice of surviving within that limited space with a strong adherence to the law, even if that law is unjust.

There is also very little effort to reach out to the Malaysian public or even elected representatives for help in the fight for justice.

Since 1998, Malaysians generally have become braver, and have started coming out in much larger numbers in peaceful assemblies to protest wrongdoings and demand changes. But alas, this has not moved the trade union movement or workers to do the same, despite the continued erosion of worker and trade union rights.

The absence of a progressive and dynamic new breed of worker leaders may also be a factor. Current existing union leaders seem to have been compromised – worried more about union de-registration, the financial security of union members, or perhaps their own.

But the struggle for better rights and justice will always have an element of risk, and unless unions and their leaders are brave enough to fight for justice and rights, then things will not change.

Union leaders have also forgotten how to use their largest asset, namely the large numbers of workers acting in solidarity.

Union leaders today often choose to act alone, in a representative capacity – but neither employers nor government ministries are really worried because they believe that unions are weak, and that their leaders are incapable of moving even their own membership to collective action.

Even when pickets are carried out, the members that do come out and participate is but a small percentage of the membership. The last few large pickets or protests that occurred in Malaysia were from migrant workers, and many of them are not even unionised.

What happened with Malaysian Airlines when the company decided to get rid of about 6,000 workers is an indication of the state of the labour movement. These were all mostly unionised workers, with the unions affected having thousands of members, and yet not a single dedicated mass protest took place.


 
 To appreciate how the Malaysian trade union movement came to be this way, the history of the labour movement in the country has to be recounted, particularly before the subjugation of the labour movement by the British.

The Malaysian Trade Union Congress (MTUC), unfortunately, is a creature of British manipulation, emerging only after much stronger unions, federations, and leaders were suppressed.

One would have expected that the MTUC and the larger labour movement would have undergone a resurrection after Malaya gained independence in 1957, but that did not happen.

The ‘union way’

With the passage of time, workers themselves have forgotten the past, and how strong the labour movement was at one point in the history of Malaysia.

This lack of historical knowledge, complemented by a lack of education and empowerment of workers and union members by existing “leaders,” keeps unions weak.

For many workers today, the union is simply a “subscription” deducted automatically from their salary by employers and transmitted to their unions, and the little benefit that they get from collective bargaining, which are usually salary increments and bonuses.

Unions now also seldom have regular meetings for its members, if at all, which has been proven to be essential for the strengthening of solidarity, enhancing knowledge of members, and strengthening unions as a whole.


 
 The lack of members being involved in decision-making and union actions has also developed in an overall lack of interest. The dearth of new leaders is also problematic, and we find the same old people retaining union leadership positions for years and years.

Things need to change, if unionism and the labour movement are to become stronger and more effective, but standing in the way are the existing leaders of unions.

It is easy to blame the government and existing laws, but if workers and unions are not ready to fight for better rights together, then the legislative hurdles to overcome will only get taller.

There must be a “union way” – a collective struggle with all workers standing together in solidarity, not a handful of representatives working without the participation or support of their members.


This article was first published by Aliran here. Malaysiakini has been authorised to republish it.

Part 1: The state of the labour movement in Malaysia

Part 2: The origins of the labour movement in Malaysia
Read more at https://www.malaysiakini.com/news/402157#ksWAchppO7i0Ostf.99

Friday, November 17, 2017

ABOLISH POCA AND DETENTION WITHOUT TRIAL LAWS (38 Groups)




Media Statement16/11/2017 (now 38 groups)

ABOLISH POCA AND DETENTION WITHOUT TRIAL LAWS
142 juveniles and possibly thousands denied their
liberty without being accorded the right to fair trial

We, the 36 undersigned civil society organisations, trade unions and groups are perturbed to hear that 142 juveniles have been arrested under the Prevention of Crime Act (POCA), a law that allows the detention of people without trial. This was revealed by the Deputy Prime Minister of Malaysia, Ahmad Zahid Hamidi, in a Parliamentary written reply dated 31/10/2017.(Malaysian Insight, 7/11/2017)

We are shocked about the continued existence of Detention Without Trial laws in Malaysia, including the Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 that allows for persons to be arrested, detained and/or restricted without even being accorded the right to challenge the reasons of their incarceration and/or restriction in court. The fundamental right to a fair trial is denied. 

If 142 juveniles were victims of this Detention Without Trial(DWT) law, then one wonders whether thousands of individuals are currently being detained/restricted under POCA and other DWT laws.

The fundamental problem with these DWT laws in Malaysia is that the victim cannot even challenge even the reasons for his arrest, detention and/or restriction in a court of law. Without the ability to go for a judicial review challenging the reasons used for the detention/restriction, the judiciary is effectively barred from ensuring that the Executive is not abusing its power and/or that no innocent person is being unjustly denied his constitutionally guaranteed rights and liberties.  

DWT allows for an individual to be detained and/or restricted indefinitely according to the whims and fancies of the government, be it a Minister or some appointed Board. 

A person who has been arrested, detained and/or restricted under these draconian Detention Without Trial Laws are also denied the fundamental right to a fair trial. The  State could also deny rights/liberties of the innocent. The principle that everyone should be presumed innocent until proven guilty in a court of law must be respected.

When Malaysia finally got rid of the infamous Internal Security Act 1960(ISA) and the Emergency(Public Order and Prevention of Crime) Ordinance 1969, there was hope that all other laws that allow for DWT will also soon be repealed. 

However, the opposite happened and the ability of the State to continue using Detention Without Trial laws, was enhanced by the amendments of the Prevention of Crimes Act 1959(POCA), and the introduction of the new Prevention of Terrorism Act 2012.

An amendment to POCA, which came into effect on 2/4/2014, introduced a new Part IVA, that introduced Detention Without Trial. The Board could now issue ‘detention order for a period not exceeding two years, and may renew any such detention order for a further period not exceeding two years at a time, if it is satisfied that such detention is necessary in the interest of public order, public security or prevention of crime.’

Previously, when POCA was used, within 24 hours after arrest when the victim is brought before the Magistrate for a remand application, a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that there are grounds for believing that the name of that person should be entered on the Register was required before a Magistrate had to grant a 14 day remand. But, after April 2014, all that is required is a statement of a police officer of merely the rank of Inspector. Hence, rather than having greater safeguard against possible abuse, it was made easier by requiring just a lower ranked Inspector’s statement. Remand period was also extended to 21 days.

POCA, which was originally enacted to be used for organized crime members, triads or gangs involved in crimes involving ‘violence or extortion’ was amended to cover all offences in the Penal Code. Originally it was to be used for gangs of 5 or more persons, but that was amended to 2 or more persons. That means that POCA can now be used for even a person who committed a  crime with another, even if the crime was theft or some other lesser crime. Right to a fair trial now could easily be denied for many more persons.

The POCA amendment, that came into force in May 2014, allowed for POCA to be used also for an even wider range of persons including drug traffickers including persons living on proceeds of drug trafficking, human traffickers including persons living on proceeds of human trafficking, persons involved in unlawful gaming, smugglers of migrants including persons living on proceeds of migrant smuggling, recruiters of members of gangs or persons to participate in some crime. A subsequent amendment in 2015 added ‘Persons who engage in the commission or support of terrorist acts under the Penal Code’.

An interesting amendment to POCA that came into effect on 1/9/2015 was section 4(2A) which stated that “No person shall be arrested and detained under this section solely for his political belief or political activity. The new Section 4(5) goes on to explain "political belief or political activity" as meaning ‘engaging in a lawful activity through-(a) the expression of an opinion or the pursuit of a course of action made according to the tenets of a political party that is at the relevant time registered under the Societies Act 1966 [Act 335] as evidenced by-(i) membership of or contribution to that party; or (ii) open and active participation in the affairs of that party; (b) the expression of an opinion directed towards any government in Malaysia; or (c) the pursuit of a course of action directed towards any government in Malaysia.".

This may give the impression that POCA will not be used against politicians (and possibly even civil society personalities) for actions directed against the government. It however does not protect civil society or human rights defenders if their actions and/or expression of opinion is directed against some our perpetrator of injustice, not being ‘any government’, or is they are alleged of committing some other crime. We recall that POCA was used in July 2016 in the case of R. Sri Sanjeevan, Malaysian Crime Watch Task Force (MyWatch) chairman – a civil society organisation. 

This amendment, however, may have the effect of reducing the interest or concern of political parties about POCA and such Detention Without Trial Laws.

The victims of these DWT laws may now be mostly common people, who are being detained and/or restricted for years without even being accorded a fair trial. 

The number of victims of such DWT laws are also unknown, as most such information in Malaysia are usually known when the government makes a reply to a Parliamentary Question. The recent information about the number of juvenile victims of POCA was because of a such question raised by an Opposition parliamentarian.

Now, whenever a person is suspected of a crime involving 2 or more persons, POCA can simply be used as it is so much easier, and requires no comprehensive investigation or gathering of evidence that would have been required if one was to be charged and tried in court. In a fair trial, prosecution needs to prove that a person is guilty beyond reasonable doubt. The guilt or innocence of a person must be determined by an independent judge in court, and the belief of the police, prosecution or government that a person is guilty is inadequate. A trial also gives a right to the accused persons to defend themselves, and the courts will decide after considering all evidence and facts of the case. 

Therefore, we call 

1.       For the immediate repeal of all Detention Without Trial laws, including the Prevention of Crimes Act 1959(POCA), Prevention of Terrorism Act 2015(POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985;

2.       For the immediate and unconditional release of all persons now currently being detained and/or restricted under these Detention Without Trial laws;

3.       For the immediate disclosure of the numbers of persons being detained under these DWT laws, and the reasons being used to justify their detention/restriction;

4.       That compensation and/or damages be paid to all victims of detention without trial laws for their loss of rights and liberties;

Charles Hector
For and on behalf the 36 groups, organisations and unions listed below

ALIRAN
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Asia Pacific Solidarity Coalition. (APSOC)
ATRAHDOM Guatemala.
AWAM
Australians Against Capital Punishment(AACP)
BERSIH 2.0
Center for Prisoners' Rights Japan
Christian Development Alternative (CDA), Bangladesh
Civil Rights Committee of KLSCAH
Democratic Commission for Human Development, Pakistan
Indonesian Legal Roundtable
Institute for development of Alternative Living (IDEAL)
Japan Innocence and Death Penalty Information Center
Legal Awareness Watch (LAW), Pakistan
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
Malaysia Youth & Student Democratic Movement (DEMA)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative
NUFAM(National Union of Flight Attendants Malaysia)
Odhikar, Bangladesh
Parti Rakyat Malaysia (PRM)
Persatuan Komuniti Prihatin Selangor & KL
Philippine Alliance of Human Rights Advocates
PROHAM (Society for the Promotion of Human Rights, Malaysia)
Sahabat Rakyat 人民之友
Sawit Watch, Indonesian Social NGO
Saya Anak Bangsa Malaysia (SABM)
Sosialis Alternatif (Committee for Workers International-Malaysia)
Suara Rakyat Malaysia (SUARAM)
Teoh Beng Hock Trust for Democracy
Think Centre, Singapore
Workers Assistance Center, Inc., Philippines
WH4C (Workers Hub For Change)
Yaung Chi Oo Workers Association (YCOWA)

Additional Endorsements:-
Asia Centre
Human Rights & Democracy Media Center SHAMS”

Wednesday, November 15, 2017

Siti Noor Aishah Atam - Release her, and Repeal section 130JB Penal Code?

In my opinion, Siti Noor Aishah Atam should be released, and the current section 130JB of the Penal Code need to be repealed (or at least amended). For sure, books, articles...(especially those not banned in Malaysia) should not be considered '...items associated with any terrorist group or the commission of a terrorist act...'. 'Items' should mean guns, explosives, letters/tapes with instructions to commit acts, etc - certainly not books(more so when they are not banned, or was obtained at some bookshop?). Further, having a book/article and reading it even if it is about some terrorist groups, terrorist ideology, past terrorist action should not be made into a 'crime' - Curiosity is a human trait. Further, for persons who want to convince others to reject such terrorist ideology, groups, etc  - it means they should know what is being said to be able to criticize it. When Malaysia can stop Christian books that use the word 'Allah', how come they failed to stop the entry of these books 'items associated with any terrorist group or the commission of a terrorist act'

Secondly, we know that the problem with 130JB is that the words like '"knowing", "intentionally", "having reason to believe", etc is not there unlike most of other section 130 offences. That means the mere possession of the books is sufficient to convict. In Parliament this 'error' was acknowledged by the Minister, who seem to have said that it would be amended later to correct matters. No amendments yet. 

After the Chief Justice and the President of Court of Appeal tenure was extended beyond their retirement age, it may have impacted the 'independence' of Judges. Could Judges be thinking that being 'pro-government' will increase their chances of promotion, or even extended tenure beyond retirement. Will justice be done in this case based on the facts and evidence, or will other factors come into play?

5 year prison sentence from the date of arrest may be a short sentence. She was arrested, I believe, on 22/3/2016, and that means about 1 year and 7 months of her prison sentence have been served.   



Siti Noor Aishah Atam 

she was arrested under SOSMA[Security Offences (Special Measures) Act 2012]
- then she was charged and tried in the High Court. At the close of prosecution's case, the High Court acquitted her.
- then they arrested her under POCA(Prevention of Crime Act) - a Detention Without Trial Law. (This they did after the High Court refused the prosecution's application to keep he in Detention pending the filing of the appeal...). Was it an act of contempt of court?
- then the Court of Appeal allowed the prosecution's appeal, and the case was send back to the High Court for continued trial
- the High Court then found her guilty and sentenced her to 5 years jail..
- Anyway, the case is now at the Court of Appeal ...and the judgment will be out soon...

IMPORTANT - because in most of such case, it is most likely that Detention Without Trial(DWT) laws will be used...Detention/Restrictions orders for a virtually unlimited period on the discretion of the Board. When such DWT laws, the victim cannot even the challenge the reasons being used for his/her detention/restriction...In some other cases, persons charge just plead guilty - there is no full trial.

Hence, Siti's case was important - because there was a trial..

The charge against her was - the possession of 12 books containing elements of violence dan linked to terrorist groups that is the Jenaah Islamiah(JS), Islamic State(IS) and Al Qaeda...the charge in full is as stated below in the Malay language.

“Bahawa kamu pada 22 Mac 2016 jam lebih kurang 12.25 tengahari di sebuah rumah dialamat Lot 1241, Jalan Lapangan Terbang Sura, dalam Daerah Dungun, dalam Negeri Terengganu, telah memiliki 12 buah buku yang merupakan item yang berunsur perbuatan keganasan dan berkaitan dengan Kumpulan Pengganas iaitu Kumpulan Pengganas Jemaah Islamiah (JI), Islamic State(IS) dan Al Qaeda(AQ) sepertimana di Lampiran A dan dengan itu kamu telah melakukan satu kesalahan dibawah Seksyen 130JB(1)(a) Kanun Keseksaan dan boleh dihukum dibawah peruntukan yang sama.
The problem was that these books were not banned by the Malaysian government...that was a factor that led to the acquittal without Defence being called in the first case...

The 2nd problem was proving that the books were really Siti Aishah's books...

My other concern, was how do we decide that these books are linked to terrorism and terrorist groups. The prosecution called in experts from the academia, one even from Singapore...Well, unlike DNA, fingerprint, autopsy, etc ...all these experts could do was give their own opinion...

In any event, the judgment of the High Court dated 29/9/2016 that acquitted Siti without calling her to enter her defence can be found here - Siti Noor Aishah Atam - Alasan Penghakiman Mahkamah Tinggi - Mahkamah Bebas Polis Tangkap Lagi Guna POCA??

The High Court had last year acquitted and released her, but on the same day, Aishah, the first of five siblings, was re-arrested under the Prevention of Crime Act 1959 (Poca) and detained for another 60 days.Upon her release, she was placed under house arrest. Last Monday, she was again arrested under Sosma and is currently detained at Kajang prison.- FMT News, 31/3/2017
After the Court of Appeal overturned the acquittal, and send the case back to the High Court - the High Court found Siti Aishah guilty...and sentenced her to 5 years. That judgment of the High Court could be found in this post -  Siti Noor Aishah Atam - dipenjarakan 5 tahun memiliki buku yang tidak diharamkan kerajaan. Kini di Mahkamah Rayuan?

In the 2nd High Court judgment, interesting points emerge:-

1. SOSMA[Security Offences (Special Measures) Act 2012] - prosecution used this. This allows the normal evidential and procedural requirement that ensure a fair trial. An example are statements made by the accused person after arrest...In this case, the court accepts a alleged statement by Siti to the arresting officer that the things in the room belongs to her..(despite the fact that seem to have no report/written statement to support the arresting officer's statement) - well, if SOSMA is relied on, one can ignore the requirement of the Evidence Act. Now, in Malaysia, no statement made the accused person after arrest can be used by the prosecution - not even a confession...


SOSMA 2012

Inconsistency with the Evidence Act 1950
17. This Part shall have effect notwithstanding anything incocsistent with the Evidence Act 1950 (Act 56)

Statement by accused
18A Any statement by an accused whether orally or in writing to any person at any time shall be admissible in evidence


2.  The 2nd matter, that the court concluded was that this was a 'Strict Liability' crime and there was no requirement to show intention...i.e. if the books was found on her, she was guilty ...there was no need to prove intention ...since words like "knowing", "intentionally", "having reason to believe"was not there in comparison with some of the other section 130 offences...which had such words.
Section 130JB Possession, etc. of items associated with terrorist groups or terrorists

(1) Whoever -
(a) Has possession, custody or control of; or
(b) Provides, displays, distributes or sells,
Any items associated with any terrorist group or the commission of a terrorist act shall be punished for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item

This lack of mens rea element (intention, etc) was raised in Parliament - and the Minister also said that he would add the 'mens rea' element if he could ---and he would discuss with the AG ...on the issue of an amendment later?...(read the Hansard extract here, and also part of the 2nd Judgment)


Saya mendengar hujah daripada Ahli-ahli Yang Berhormat berhubung dengan satu seksyen yang banyak dibangkitkan iaitu Seksyen 130JB(1) iaitu seksyen yang berhubung dengan possession of item. Saya sendiri pun mempunyai kecurigaanjuga, Yang Berhormat. Saya memahami apa yang Yang Berhormat sebut berhubung dengan possession ini dan Yang Berhormat sebut juga, itu yang asas sekali dalam sudut undang-undang, actus reus dan mens rea itu, ia tidak ada soalan mens rea proof. Asalkan ia mempunyai atau ada benda-benda macam itu, kalau dilihat secara literal undang-undang ini, boleh dihukum dan boleh dibawa ke mahkamah............
.............Yang Berhormat, oleh kerana saya juga peka dengan proses pemindaan Yang Berhormat. Kalau saya boleh buat sekarang pindaan itu, saya boleh ubah. Masuk apa yang disebut oleh itu tadi supaya soalan mens rea itu akan dimasukkan dalam seksyen 130JB ini. Akan tetapi saya beri assurance satulah sebagaimana yang dipinta oleh Yang Berhormat Shah Alam, saya akan bincang dengan AG selepas kelulusan itu nanti untuk kita membincangkan soal pindaan kepada 130JB ini............"
Hence, if this be the case, only 2 things need to be shown with regard to the 130JB offence..and proven

FIRST - That the 12 books was in Siti's possession, custody or control - there is no need to even go into the WHY? Or whether she knew that it was about terrorism? Or whether she wanted to join the terrorist struggle...so, it is very ODD why a lot of time and effort was spent on this...

SECOND - Whether it was 'items associated with any terrorist group or the commission of a terrorist act' Since, it was not banned in Malaysia, doubts are created? Since, it was apparently on sale in shops...further doubts arises....So, the only proof would the evidence of the so-called experts...

MY OTHER MAJOR CONCERN IS ...what do you mean by  'Any items associated with any terrorist group or the commission of a terrorist act'
- well if was bombs, guns, etc that belongs and/or is used for the comission of terrorist acts ...maybe not so much of a problem
- BUT when it comes to books, articles and other literature --- there is a BIG problem

'Associated' - what does it even mean? It could be articles/books looking and  discussing ...origins,motivation, etc... It could even be books that discusses...and criticizes...and come with a conclusion against these groups and acts...

Books published by these groups - well, one may want to 'ban' this ...may it an offence to possess it or read it....BUT then, for anyone who wants to 'combat' these groups, their thinking, etc...would have to read it, understand it ...and only then will they be able to highlight the flaws or critic/undermine its ideology...

Will newspapers that write about these groups or these acts also be wrong and people reading it be criminals?

Hence, Siti Noor Aishah's case brings out these flaws about this offence....and maybe, books and articles should not even be considered 'items' with regard to this section. 

Religion have been used many times in history as a justification of VIOLENCE against persons of other beliefs...We have the Crusades, ...even the Sunni-Shia wars/conflict...

In this case, it looks very much that the government is trying hard to justify the arrest and prosecution of Siti...and all this is happening whilst the case is pending. The matter is before the Courts - and as such, the Minister or the police should not be saying anything...REMEMBER our concern is JUSTICE...it is not to be taken like a competition - the prosecution MUST NOT be striving to win...that is wrong.

"...On a separate matter, Comm Mohamad Fuzi said actions taken against Siti Noor Aishah Atam, 30, was justified. She is in Kajang Prison after the Court of Appeal reversed her acquittal over charges of having 12 publications relating to terrorism.
She was a Kolej Universiti Insaniah (Kedah) graduate who was continuing her Masters in Islamic Studies at Universiti Malaya when she was arrested in March last year under Sosma for having books on Jemaah Islamiyah (JI), Islamic State (IS) and al-Qaeda.
On Sept 29 last year, she was acquitted by the Kuala Lumpur High Court but was re-arrested under the Prevention of Crime Act for allegedly importing IS flags into the country.
“We will not compromise against IS militants as well as sympathisers and supporters. We have enough credible evidence,” Comm Mohamad Fuzi said.
“Safety and security is our priority,” he said, in dismissing allegations by the Terengganu native’s family over miscarriage of justice in Siti Noor Aishah’s case.
“We also discovered that she was a student of wanted fugitive militant Dr Mahmud Ahmad, who has fled to southern Philippines.
“We won’t take such drastic action if the evidence is not sufficient,” he said....Star, 11/4/2017
Comments:-
- well, her charge was about being in possession of 12 books - nothing to do with importing flags? 'Importing' - well, that requires some license, does it not? If terrorist organisation flags were found, surely they would have charged her for that - better than non-banned in Malaysia books.
- She was a student of a wanted fugitive...well, was that fugitive not a lecturer in a government University - and, Masters or other students are free to study any of these 'government vetted' lecturers, are they not.
- Remember the CHARGE - nothing to do with whether she knew alleged terrorists...or wanted to go to fight for terrorist groups...so why is the 'police' making such statements when her trial is ongoing...Why 'defame' a person whose trial and appeals are still ongoing?



JOHOR BARU, April 1 — The Home Ministry today urged all parties not to play up the issue over the detention of Siti Noor Aishah Atam and to leave the matter to the police.
Its deputy minister Datuk Nur Jazlan Mohamed said if Siti Noor Aishah who was re-arrested under the Security Offences (Special Measures) Act 2012 (Sosma) was found not guilty, the former Universiti Malaya student would be released.
“The police will not simply arrest anybody if he or she is not involved in activities which are inclined towards terrorism.
“In the case of Siti Noor Aishah, we will assess whether she was really involved in acts of violence,” he told reporters after opening #KitaPulai Mini Carnival Permatang Kempas, here today.- Malay Mail, 1/10/2017

Comments:-
- Well, what is the Deputy Minister even talking about 'involvement in acts of violence'. Charge her for that - rather than the possession of 12 books then? 
- The Deputy Minister says 'leave the matter to the police' - well, should he not have said 'leave the matter to the Court'. The police is out of the picture, save being still part of the prosecution...

Police have enough grounds to detain and investigate Siti Noor Aishah, who was re-arrested under the Security Offences (Special Measures) Act (Sosma) on Monday.
“They can say anything they like. But we have enough grounds. Well, sometimes people won’t admit to what they have done,” Inspector-General of Police Khalid Abu Bakar told a press conference here today.
“No guilty person would admit they are guilty.”...“We have enough reasons to arrest her,” he added.
“So don’t only now say ‘I didn’t do it, I’m not involved’. We follow the laws in our country. We don’t do something out of our jurisdiction.”...FMT News, 31/3/2017

Comment:-
- 'enough reasons to arrest her' - the only reason to arrest her has been that they found her with 12 books...Any other reason is not relevant. 
- 'enough grounds' ..'enough reasons' - well, sadly Detention Without Trial Laws do not allow the victims to challenge these 'grounds' or 'reasons' in court. In short, the police or the government can say anything - but the courts cannot review these 'reasons' or 'grounds'...So, it could be baseless - but we are all expected to simply trust the Police and the Government?

BUT, the point to be made here was why is the police and Deputy Minister even trying to justify the charging of Siti Noor Aishah, and the use of SOSMA and POCA against her? Why even use SOSMA which allows alleged statements made by Siti to the arresting officer to be admitted in court? If there is evidence, let us have a normal trial following all the requirements of the Evidence Act - the use of SOSMA itself raises doubt...
 
What will JUDGES do - act in accordance of what PM Najib and the government wants OR uphold the cause of justice without fear or favour. Judges should not blindly follow 'bad' laws - they are duty bound to even critic 'bad' laws inconsistent with justice...But, alas would judges be worried about promotions and transfers ...and do as the government want?

A 'terrorist' ideology can only be defeated by arguments - not the banning of reading material that are 'associated' with  'with any terrorist group or the commission of a terrorist act'...

Opinions and viewpoints can only be defeated by sound convincing argument...so, acquit Siti Noor Aishah Atam of this charge of being in possession of books...that were not even banned by the Malaysian government...

Well, this is my opinion in the matter - please consider it, and make your own conclusions about this case...

Let us call for the end of Detention Without Trial laws - and demand that all persons be given a fair trial, in accordance with requirement of the Evidence Act and Criminal Procedure Code. Laws like SOSMA also must be abolished...