URGENT APPEAL - THE OBSERVATORY
New information
MYS 002 / 0408 / OBS 061.1
Arbitrary detention /
Concern for the health condition
Malaysia
February 11, 2009
The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), has received new information and requests your urgent intervention in the following situation in Malaysia.
New information:
The Observatory has been informed by reliable sources about the dismissal by the Federal Court of the habeas corpus application lodged by Mr. P. Uthayakumar, legal adviser of the Hindu Rights Action Force (HINDRAF), an NGO defending the rights of the Indian minority in Malaysia, as well as by Messrs. M. Manoharan, R. Kengadharan, V. Ganabatirau, three lawyers, and T. Vasanthakumar, HINDRAF organising secretary.
According to the information received, on February 11, 2009, the Federal Court dismissed the five HINDRAF leaders' motion for review of their habeas corpus application. Justice Nik Hashim Nik Ab Rahman, who was leading a three-member panel, said the decision to dismiss the motion was a unanimous one. The panel also agreed with the findings of Kuala Lumpur High Court judicial commissioner Zainal Aznam Abdul Aziz, who stated that the Prime Minister could order a person to be detained under Section 8 of the Internal Security Act (ISA) without waiting for full investigation by the police.
The Observatory recalls that Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar were arrested on December 13, 2007 in Kuala Lumpur by Special Branch police officers under Section 8 (1) of ISA, which allows the person to be placed in administrative detention for up to two years. Prime Minister Abdullah Ahmad Badawi, who was then also Internal Security Minister, had ordered for their detention, subsequent to a mass rally HINDRAF had organised on November 25, 2007 in Kuala Lumpur[1].
As of issuing this urgent appeal, Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar remained in detention at the Kemta Prison, Kamunting, Perak.
The Observatory considers the detention of these five HINDRAF leaders as arbitrary insofar as it seems to merely sanction their human rights activities. The Observatory also expresses its deep concern about their conditions of detention, and is especially worried by Mr. P. Uthayakumar's health condition, a diabetic suffering from heart problems, who has had no access to necessary medical treatment. The Observatory further recalls that Malaysia was elected to the United Nations Human Rights Council in June 2006 for three years and is committed in this regard to "uphold the highest standards in the promotion and protection of human rights"[2].
Background information:
On January 24, 25 and 28, 2008, the High Court of Kuala Lumpur heard a legal challenge to the ongoing detention of Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar. At the end of the hearing, the court said it would issue its judgment on February 26, 2008. On that date, the Kuala Lumpur High Court rejected their habeas corpus applications.
On February 26, 2008, the lawyers of the five HINDRAF members filed an appeal, which was dismissed on May 14, 2008.
On August 4, 2008, their lawyers filed a new habeas corpus appeal at the Apex Court following the lodging of a case before the Ipoh High Court[3]. This appeal is still pending.
Actions required:
Please write to the Malaysian authorities, urging them to:
i. Guarantee in all circumstances the physical and psychological integrity of Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar;
ii. Release Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar immediately and unconditionally as their detention is arbitrary;
iii. Ensure in the meantime that Mr. P. Uthayakumar be granted all necessary medical treatment, if necessary in specialist medical facilities outside the prison where he is held;
iv. Guarantee in the meantime their right to receive visits and communicate with their lawyers and relatives;
v. Put an end to all acts harassment against human rights defenders in Malaysia;
vi. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly on December 9, 1998, especially its Article 1, which states that "everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels", as well as Article 12.2, which provides that "the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration";
vii. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with international and regional human rights instruments ratified by Malaysia.
Addresses:
・ Y.B Dato' Seri Abdullah bin Haji Ahmad Badawi, Prime Minister, Prime Minister's Office Malaysia, Perdana Putra Building, Federal Government Administrative Centre, 62502 PUTRAJAYA, Selangor, Malaysia., Tel: + 60 3 8888 6000, Fax: + 60 3 8888 3444, Email: ppm@pmo.gov.my
・ Y.B. Dato' Seri Syed Hamid bin Syed Jaafar Albar, Home Minister and Internal Security Minister, Blok D 2, Parcel D, Pusat Pentadbiran Kerajaan Persekutuan, 62546 Putrajaya, Malaysia. Fax: + 603 8889 3854. Email : pro@moha.gov.my
・ Tuan Yasuhimi Mohamad Yusuf, Director, Kamunting Detention Centre, Taiping, Perak, Malaysia. Fax: +605 883 7010
・ Mr. Tan Sri Abu Talib bin Othman, Chairman of the National Human Rights Commission of Malaysia (SUHAKAM), Tingkat 29, Menara Tun Razak, Jalan Raja Laut, 50350 Kuala Lumpur, Malaysia; Fax: + 603-26125620; Email: humanrights@suhakam.org.my
・ H.E. Mr. Othman Hashim, Ambassador, Permanent Representative of Malaysia to the United Nations in Geneva, International Centre Cointrin (ICC), Bloc H (1st floor), Route de Pre-Bois 20, 1215 Geneva 15, Switzerland. Fax: +41 22 710 75 01. Email: mwgeneva@ties.itu.int
Please also write to the embassies of Malaysia in your respective countries.
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Geneva - Paris, February 11, 2009
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[1] See Observatory Annual Report 2007.
[2] See OP9 of the General Assembly Resolution A/RES/60/251.
[3] On September 8, 2007, the Ipoh High Court had dismissed their habeas corpus application and ruled that the Minister acted according to the legal provisions in making the order.
