Malaysian Courts on Trial: The case of Anwar Ibrahim


IMG_0923I have been a trial observer in Anwar Ibrahim’s sodomy trials since 1999. In fact, I have only missed to observe his trial once -that was when the Malaysian Court of Appeals overturned the High Court’s previous decision acquitting him from all charges.

I made it a point hence to observe oral arguments in Ibrahim’s case before the Malaysian Supreme Court. Similar to ours, the Malaysian Supreme Court sits in many divisions. The proceedings I had the chance to observe had five justices on it.

Unfortunately, my commitments at home did not allow me to observe for more than two days of oral arguments. I thought that the two days would be enough because in our own Supreme Court, very seldom will the Court hear a matter for more than two sittings.

But the Malaysian Court is different, Unlike ours, which will only hear issues of law, the Malaysian Court heard arguments point by point on why the Court of Appeals erred in reversing the High Court. I had the privilege of hearing two children of the revered but recently passed barrister Karpal Singh, both of whom argued that the Appellate Court erred in convicting Ibrahim on the basis of dubious DNA evidence.

While DNA as a science is itself accepted, what made the use of DNA evidence dubious in Ibrahim’s case was the fact that while the DNA extracted from a towel, a comb and a tooth brush allegedly used by Ibrahim came from one and the same person, there was nonetheless no direct evidence that they were in fact the DNA of Ibrahim! DNA as a science would itself confirm if DNA found from an object is from a particular person. But in the case of Ibrahim, the Appellate court overturned his conviction on the basis of mere circumstantial evidence that they could only have come form Ibrahim, despite the absence of scientific link to him.

This kind of a conclusion would not have been possible in the Philippine or any other jurisdiction with the semblance of an independent judiciary. The fact that the Malaysian Appellate Court convicted him under this dubious condition could only mean that it abdicated its independence and agreed to be a tool of the ruling party, UMNO, and Malaysian Prime Minister Najib Razak, in an effort to stymie Ibrahim and the rest of the country’s opposition into surrender.

But battle tested democrats don’t succumb to threats easily. By highlighting the obvious, Anwar has turned the table on the Malaysian Judiciary. No court in this planet could have convicted him on the basis of DNA evidence with no direct link to him. The questions now is whether the Malaysian Supreme Court will exhibit independence and acquit Ibrahim, or be swayed by the ruling party as did the Court of Appeals. In a way, what I observed was the Malaysian Courts on trial, and not just Anwar Ibrahim’s case.

All freedom loving people of the world eagerly await the outcome of this trial. For with it is also a verdict on the independence and integrity of the Malaysian Courts.

Communication to the UN High Commissioner on Human Rights


Ms. Navanethem Pillay

UN High Commissioner for Human Rights

Office of the United Nations High Commissioner for Human Rights
OHCHR- Palais Wilson
United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland

 

 

Manila, 21 March 2013

 

 

Urgent appeal in relation to the massive and gross human rights violations committed against Filipinos in Sabah by Malaysian state agents

 

 

Dear Ms. Pillay,

 

We respectfully submit that you consider this urgent appeal in relation to the massive and gross human rights violations committed against Filipinos in Sabah by Malaysian state agents. We request that you urgently intervene so that Malaysia will respect the human rights of the Filipinos in Sabah, recognized under the Universal Declaration of Human Rights.

 

 

I.             Background of the gross human rights violation against Filipinos in Sabah

 

1)             On 14 February 2013, suspected Filipino gunmen numbering between 80 to 100 were cornered in the Malaysian state of Sabah on Borneo island triggering the start of the Sabah standoff.[1]

2)             On 15 February 2013, the unidentified group of men introduced itself as the Royal Sulu Army reviving the longstanding claim of Sabah by the Sultanate of Sulu.[2]

3)             On 16 February 2013, Philippine Defense Secretary Voltaire Gazmin, stated that the renewed claim on Sabah by the Royal Sulu Army is not sanctioned by the Philippine government.[3]

 

4)             On 20 February 2013, Malaysian Home Minister Datuk Seri Hishammuddin Tun Hussein said that Malaysian security forces are in control of the Sabah standoff and warned the Sulu Royal Army of the consequences if they refuse to surrender.[4]

 

5)             On 23 February 2013 (Saturday), Malaysia adopts a “wait-and-see” approach against the Royal Sulu Army which holed up in Sabah.[5]

 

6)             On 23 February 2013, the Philippine Department of Foreign Affairs (DFA) informed Malaysia that a ship on humanitarian mission, carrying social workers and personnel, would be dispatched to Lahad Datu to “fetch and ferry back the women and other civilians among the 180-member group who are holed out in Lahad Datu.”[6] According to Philippine Foreign Affairs Secretary Albert F. del Rosario “We sent the ship to Lahad Datu on a humanitarian mission. We are deeply concerned about the presence of five women and other civilians in the group, and we urge them to board the ship without delay and return home.”[7]

 

7)             On 01 March 2013, violence erupted on the 17th day of the Sabah standoff with a shoot-out after Malaysian security forces attempted to tighten a cordon around the Royal Sulu Army.[8] Twelve Filipinos and two Malaysian police officers were reportedly killed during the exchange of gunfire.[9] On the other hand, 10 followers of Kiram reportedly surrendered while others went to the sea to escape.[10]

 

8)             On 02 March 2013, more bloodshed occurred with 6 Filipinos and 6 Malaysian police officers being killed in an ambush set by the Royal Sulu Army. [11]

 

9)             On 03 March 2013, Malaysian cops stated that three areas where firefights occurred were now under Malaysian control while a man linked to the earlier ambush was beaten to death after he tried to hostage civilians. [12]

10)          Mopping operations of some 300 homes in the village ended at 6:30 in the evening. On the other hand, Kiram’s camp claims to have captured at least four Malaysian officials including a police officer, two military officials and a local government official after the clash on Saturday. [13]

 

11)          On 04 March 2013, Philippine Foreign Affairs Secretary Del Rosario flew to Kuala Lumpur, Malaysia to appeal for maximum tolerance. Secretary del Rosario also took the opportunity to personally convey the Philippine Government’s request for clearance for a Philippine Navy ship to proceed to Lahad Datu, Sabah to enable the Philippine medical personnel aboard to provide humanitarian and consular assistance and provide medical care to the wounded and ferry them and the remaining members of the group back to their respective homes and families.[14]

 

 

II. Allegations of massive and gross human rights violation committed against the Filipinos in Sabah

12)          On 08 March 2013, night time, Amira Taradji, (a Filipina) arrived in Patikul, Sulu, Philippines with about 200 other refugees.[15]

 

13)          Taradji was originally from Davao City, Philippines, and was among some 400 people who have arrived in Sulu, Philippines from Lahad Datu, Semporna, Tawau and Kunak all from Sabah, Malaysia.[16]

 

14)          Taradji said she and her family sailed from Sandakan to nearby islands … “from one island to another—until we reached a small island where we took a kumpit for the Philippines.” [17]

 

15)          Taradji and her family lived in Sabah for the past 26 years. Though she and her family were MyKad (Malaysian identity cards) holders in Sabah, Malaysia, they abandoned their home when the police raids started on Monday night claiming that the police were ruthless.

 

16)          Taradji said that Malaysian policemen had ordered Filipino men to run as fast as they could and then opened fire on them.[18]

 

17)          Taradji further claimed that among those killed that way on Monday night, during a “zoning operation” by police in a Filipino community in Sandakan was her brother, Jumadil.[19]

 

18)          Taradji further added that the constant raids by Malaysian security forces was harrowing and said Filipinos she encountered before leaving Sabah said they too had witnessed Filipino men being rounded up in Tawau and Kunak. [20]

 

19)          Taradji added that some of the arrested men, who tried to dissuade the police from arresting them by waving immigration documents, were killed just the same for trying to evade the raiders.[21]

 

20)          Taradji further said that, “Even if you have valid immigration document, you will not be spared. If you are lucky to reach the jail, you will die of starvation because they will not feed you,” adding she has lived in Sandakan since she was a child.[22]

 

21)           Another of those who made it back to the Philippines, Carla Manlaw, 47, said it was fear of the Malaysian policemen following stories of the abuse and killings that prompted her and other Filipinos to sail to Bongao in Tawi-Tawi.[23]

 

22)          Manlaw and 99 others, including children and the elderly, arrived in Philippines waters aboard two motorboats after sailing for about two hours from Sandakan. They were intercepted and escorted by a Philippine Navy ship until they reached Bongao late Friday, 08 March 2013. [24]

 

23)          She said that while her employer in Sandakan had no problem with employing her, she was scared of the police and “what they will do to us.” [25]

 

24)          When Manlaw heard that a vessel was returning to Bongao from Sandakan, she immediately grabbed her things and boarded it.[26]

 

25)          Also on 08 March 2013, late Friday night, Mayor Hussin Amin of Jolo, Sulu, Philippines, said the accounts of Filipinos fleeing police abuse in Sabah were “alarming and disturbing” and the Philippine government should look into it.[27]

 

26)          He said he had spoken with many refugees and their stories were the same:  Malaysian soldiers and policemen do not distinguish between illegal immigrants and MyKad holders. [28]

 

27)          “Soldiers and policemen stormed their houses and even those with legitimate working papers like passports and IC papers were not spared. These documents were allegedly torn before their eyes. Men were told to run and were shot if they did. Those who refused were beaten black and blue. Filipinos in jail were executed,” Mayor Amin said by phone late Friday.[29]

 

28)          “We are asking our government to investigate now. Refugees from Sandakan and Sabah had spoken to us about their ordeals. If indeed what they have been telling us is true, then Malaysian authorities are not just targeting the Kirams in Lahad Datu,” Mayor Amin said.[30]

 

29)          Mayor Amin said that for now, he tended to believe the stories told by the refugees that Filipino men, especially Tausug, were being killed in the streets and in detention centers in Malaysia.[31] “Our people are treated like animals there and this has to stop because they are no longer hitting the Kirams,” Amin said.[32]

 

30)          He said one reason why he believed the stories was his observation that children and women were so “deeply traumatized” that they tried to flee when they saw Filipino policemen as they arrived in Jolo. [33] “Some (of them) even attempted to jump to the sea, thinking they were still in Malaysia,” he said, referring to scenes at the Jolo port this week. [34] “I spoke to them and gave them assurance that they were all home and no one would harm them now and the policemen securing the port were not Malaysians but Filipinos protecting them,” Amin said. [35]

 

31)          On 10 March 2013, the Philippine Department of Foreign Affairs (DFA) issued a press statement on the reported violation of human rights of Filipinos in Sabah, which states:

 

DFA Statement on the Reported Violation of Human Rights of Filipinos in Sabah

Sunday, 10 March 2013 17:05

10 March 2013

 

The Department of Foreign Affairs views with grave concern the alleged rounding up of community members of Suluk/Tausug descent in Lahad Datu and other areas in Sabah and the alleged violations of human rights reported in the media by some Filipinos who arrived in Sulu and Tawi-Tawi from Sabah.

 

The Department is coordinating with the Department of Social Welfare and Development (DSWD) and other relevant agencies to document these reports so that appropriate actions could be taken.

 

The Department urges the Malaysian government to take steps to clarify these alleged incidents.

 

The Department continues to call on the Malaysian Government to give our Philippine Embassy officials and the Philippine humanitarian/consular team dispatched to Lahad Datu and nearby areas full access to the Filipinos being held “in several locations in Sabah but outside the ‘Ops Daulat’ area,” as announced by the Malaysian Inspector General of the Police Tan Sri Ismail Omar on 08 March 2013, to enable them to fulfill their mission which is to provide humanitarian and consular assistance to Filipinos who have been affected by the incident.

 

We reiterate our call on the Malaysian Government to give humane treatment to the Filipinos under their custody.

 

The allegations are alarming and should be properly and immediately addressed by concerned authorities. END[36]

32)          On 11 March 2013, the chair of the Regional Human Rights Commission of the Autonomous Region in Muslim Mindanao (RHRC-ARMM) appealed for an end to violence in Sabah and to peacefully resolve the issue as reports of alleged human rights violations of Filipinos there were “very alarming.”[37]

 

33)                         “Grabe, grabe ang mga nakita nila” (What they witnessed was very disturbing), Laisa Masuhud Alamia, chair of the month-old RHRC, said of the accounts of Filipinos who arrived in Sulu from Sabah on Thursday and Friday (07-08 March 2013). [38]

34)                         Alamia said in a telephone interview that based on the accounts of those who fled Sabah, several Filipinos, particularly Tausugs or Suluks as they are known in Sabah, were shot, arrested and tortured and that the victims were not members of  the “Royal Security Forces of Sulu and North Borneo” but civilians. [39]

 

35)                         As of noon of 11 March 2013, the RHRC has recorded a total of 1,191paguys who arrived — 767 in Tawi-Tawi and 424 in Sulu — on board nine boats from Sabah beginning March 6, a day after Malaysia launched aerial and ground attacks to signal the start of “Ops Daulat” to flush out of Lahad Datu in Sabah the “Royal Security Forces” of Sulu Sultan Jamalul Kiram III. [40]

 

36)          Altogether, 1,479 Filipinos had arrived from Sabah since March 2, of whom 288 were through organized deportation and 1,191 through self-deportation.[41]

 

37)          Alamia said some of the paguys are “self deportees,” among them farmworkers at oil palm plantations there who have no ICs and who immediately boarded the boat upon learning of the crackdown.[42]

 

38)          An IC is an Identity Card issued to Malaysian citizens and permanent residents for identification, indexing and tracking purposes.[43]

39)          But Alamia reported that some paguys informed them that even those with ICs or passports were not spared, that “when they’re caught, their ICs or passports were torn or destroyed by the Malaysian authorities and they were beaten.”[44]

 

40)          She noted that a number of the paguys “exhibited reluctance to be interviewed” by DSWD workers providing assistance to them, immediately leaving with their relatives after receiving assistance.[45]

 

41)          She said they learned that they were “afraid that Philippine authorities would arrest them.” [46]

 

42)          “Apparently they were referring to pronouncements that members of the Kiram group would be arrested when they come back. They thought this also applies to them,” Alamia said. [47]

 

 

43)          She appealed to all parties involved to end the violence and begin the peaceful resolution of the issue, and called on the Malaysian government to  “allow the entry into Sabah of the Philippine humanitarian contingent to provide relief to the Filipinos trapped there and to allow them to be brought back to the country.” [48]

 

44)          On 17 March 2013, it was reported that Filipinos, who had fled Sabah in the aftermath of the armed intrusion there by the Sulu “royal army,” had learned to endure the pains of being violently beaten by Malaysian security forces during crackdowns on suspected Sabah-based supporters of the sultanate’s men just to stay alive, survivors had claimed.[49]

 

45)          Ibrahim Alih, 38-year old Sama native from Zamboanga City, told the INQUIRER that “I did not run when they ordered me to run because I know they will shoot me. What I did was to bear the pain when they hit me,” as he was being processed by government agencies before sending him home. [50]

 

46)          Alih, who was rounded up for failing to present immigration documents during Monday last week’s sweep on his neighborhood in Sandakan, said he did not care even if blood was already coming out of his wounds because he knew it was safer for him to just submit to the beating. [51]

 

47)          When he noticed that the Malaysian forces appeared to be hell bent on beating him to death, Alih said he shouted: “I’m not a Tausug, I’m a Sama Badjao.” [52]

 

48)          Upon hearing this, the Malaysian forces allegedly stopped from hurting him but they still frisked him and took the RM700 he earned from being a carpenter in Sabah for the past four months. [53]

 

49)          He was then allowed to board ML Fatima Editha – along with hundreds of other Filipinos trying to find a space on the crammed boat – for Tawi-Tawi province.[54]

 

50)          Alih said he wished he had not been illegally working in Sabah because a valid document might have saved him from harm.[55] “I don’t even have a passport,” he lamented.[56]

 

51)          Twenty-year old Sherilyn Viado, who worked in a construction company in Sabah, said she too had to assert her ethnicity when Malaysian policemen prepared to gang up on her.[57]

 

52)          “I told them that I’m not a Tausug but a Badjao,” she said, adding that Malaysian security forces were singling out people from Sulu or Sabahans known as Suluk (people who originated from Sulu).[58]

 

53)          “If you’re a Tausug, you will surely land in jail even if you had valid papers,” Viado, a native of Zamboanga del Sur, said. [59]

 

54)          Viado said Malaysian forces were so angry at Tausugs and Suluks that they do not put distinction between males and females anymore.[60]

 

55)          “We saw on TV how they beat Tausugs, including women,” she claimed.

Viado said Tausugs or Suluks who had disappeared from her neighborhood had not resurfaced since their arrest “and the lack of information on their fate had sowed unimaginable degree of fear on us.”[61]

 

56)          Annang Im, 50, who tended a small sidewalk store in Sandakan, said she did not experience being abused but she saw how male Filipinos caught up during the sweeps had been made to physically suffer by Malaysian policemen.[62]

 

57)          Im, a Tausug-Visaya, also confirmed Viado’s claim that Malaysian security forces hated Tausugs and Suluks so much that they did not care even if suspects were killed during the sweeps.[63] “It is because of what the Kirams did in Lahad Datu,” she said.[64]

 

58)          Malaysian Attorney General Abdul Gani Patail announced in a statement that an investigation into the reported abuses has started and those complaining of such excesses will be assisted by the Malaysian Bar and the Sabah Law Association. [65]

 

 

III.             Request for urgent action

 

The Filipinos in Sabah, Malaysia, have been subjected to massive and gross human rights abuses by Malaysian state agents, in violation of the UDHR. The rights of these Filipinos in Sabah violated by Malaysian state agents include, but are not limited, to the following:

 

(a)  right against any discrimination under Articles 2 and 7 UDHR;

(b)  right to life, liberty and security of person under Article 3 UDHR;

(c)   right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment under Article 5 UDHR;

(d)  right against arbitrary arrest, detention or exile under Article 9 UDHR; and

(e)  right to a fair trial under Article 10 UDHR.

 

 

Accordingly, we appeal to your Office to:

 

  • urgently intervene and investigate the massive and gross human rights violations committed by Malaysian state agents against Filipinos in Sabah;

 

  • to express grave concern on the massive and gross human rights violations committed by Malaysia against Filipinos in Sabah;

 

  • to remind Malaysia that it provide effective remedies and compensation to the Filipino victims of the massive and gross human rights violations committed against them in Sabah by Malaysian state agents.

 

Please do not hesitate to contact us if you have any questions or if we can provide you with any additional information you may need.

 

Yours sincerely,

 

H. Harry L. Roque, Jr.

 

 

 

E. hroque@roquebutuyan.com

T. +632.8873894

 

 


A feat for UMNO


imagesIt appears that it is not just my former colleague Marvic Leonen, who was rewarded with an appointment to the Supreme Court, who benefitted

from the “rushed” signing of the Framework Agreement on the Bangsamoro Political Region.

The signing of the same, while a source of hope to all Filipinos that peace would finally be realized in battle infested Mindanao, may have been intended all along to benefit foreigners: Prime Minister Najib Razak and his moribund UMNO political party.

My source in Kuala Lampur related how they were all surprised that the Agreement, which Philippine authorities, including Justice Leonen, expected to be signed only in December of this month, was signed two months earlier last October.

Initially, I thought it was Justice Leonen who wanted it signed in time for his interview with the Judicial Bar Council. But apparently, it was Prime Minister Razak who had more at stake in signing the agreement as early as possible. This is because anytime now, parliament in Malaysia will be dissolved to pave the way for the holding of general elections. In fact, the elections should be called no later than March of next year. The actual elections would take place within two months from when it was called.

How could the signing of the Agreement favor Prime Minister Razak and his UMNO party?

Immediately after the agreement was signed, Razak’s communication group spared no time in extolling the Prime Minister as the acknowledged peacemaker of the region. Apparently, and a Web scan of Malaysian newspapers confirmed this, the signing was banner story in Malaysia. Not only was Najib praised as a peace maker, he is now being promoted as a regional leader. I understand that he is now being considered to mediate a peaceful resolution of the conflict in Southern Thailand, as well. But this appears to be mere icing on the cake. The real value of the agreement for Razak and his party lies in Sabah. In the first place, the premier’s predecessor, Abdullah Ahmad Badawi, merely obtained a simple majority in the last general elections in Malaysia. I understand that UMNO lost to Anwar Ibrahim’s party in the Malay Peninsula. Their tenuous grasp to a parliamentary majority was courtesy of UMNO having clinched a majority of the 24 parliamentary
seats in Sabah. The story of how they managed to win in this crucial state of Sabah is stuff that are regular occurrences here in the Philippines: vote buying and patronage.

What made it worse, however, was that UMNO distributed residency cards to illegal Filipinos in exchange for their votes. This is now the subject of a Royal Inquiry. A Wikileaks entry summarized the role of Filipinos in Sabah in the last elections: “Mahathir also facilitated illegal immigration from Indonesia and the Philippines in order to better balance the state’s ethnic and religious equation as a measure to ward off any future
separatist sentiments in Sabah, in addition to attracting UMNO votes needed to control the state. A Royal Commission, operated properly, would likely expose the depth of UMNO x x x political corruption and vote manipulation, further inciting Sabahans.”

Razak will now go beyond vote buying in this upcoming election. My source in Kuala Lumpur told me that he rushed the signing of the
Agreement particularly to appeal to the Filipino voters in Sabah.

Worse, another source has informed me that he has even asked MILF Chairman Murad Ebrahim to intervene and campaign for UMNO in Sabah.

With the Filipino vote likely to determine who between Najib and Anwar would be the next Prime Minister of Malaysia, the Agreement was apparently signed in a rush to ensure the premier’s hold on the crucial Filipino vote in Sabah. The betting now is: would Chairman Murad do as Najib has asked him to do?

I have already expressed the view that much as we desire peace in Mindanao. this Framework Agreement, precisely because it was rushed,
may not stand the test of judicial scrutiny. I am joined in this view by noted constitutionalists Raul Pangalangan and Former Solicitor General Estelito Mendoza. Even Ateneo College of Law Dean Emeritus Fr Joaquin Bernas has expressed similar, albeit less pessimistic concerns. Even Anwar Ibraham, while hopeful that the agreement would lead to peace, expressed concern that the Agreement was not inclusive since the Mindanao politicians, among others, were excluded from the peace negotiations.

Worse, no less than the current head of Notre Dame University’s’ Institute for Autonomy and Governance fears the many mine fields that lie in Congress and in the Supreme Court: “This arena is a big minefield that scares me to no end. There are many things that can go wrong in this arena.”

But with this confirmation that the Agreement did not just benefit Leonen and was, on the contrary, intended primarily to be Razak’s electoral fete in Sabah, it would appear that the Framework Agreement, contrary to our best hopes and expectations, is indeed doomed.

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