The Malaysian Bar questions the legitimacy of the announcement by the Ministry of Home Affairs that the Coalition of Malaysian Non-Governmental Organisations in the Universal Periodic Review (“COMANGO”) is unlawful.
Firstly, the announcement came by way of a media statement by the Secretary General of the Ministry of Home Affairs, and referred to alleged non-compliance by COMANGO with the Societies Act 1966 (“Act”). There is no mention of any order made by the Minister of Home Affairs under section 5 of the Act declaring COMANGO unlawful. Instead, it refers to the fact that since COMANGO is not registered under section 7 of the Act, then by virtue of section 41(1)(b) of the Act COMANGO is an unlawful society. However, under section 3A of the Act, the powers, duties and functions “as may be necessary for the purpose of giving effect to and carrying out the provisions of this Act” lie with the Registrar of Societies. There is no provision for the Secretary General of the Ministry of Home Affairs to make pronouncements under the Act. There is further no provision for the delegation of power by the Minister to the Secretary General in this regard.
Secondly, the media statement assumes that COMANGO is a “society” within the definition of that term in the Act. However, COMANGO in its name clearly states that it is a coalition of non-governmental organisations. It is not settled law that coalitions need to be registered under the Act. In fact, the argument was raised in Dato’ Ambiga Sreenevasan & Ors v Menteri Dalam Negeri & Ors [2012] 5 MLRH 181 that coalitions and unincorporated associations need not be registered. It is public knowledge that the High Court in that case held that the Minister of Home Affairs’ declaration that BERSIH was an illegal organisation was “tainted with irrationality”, and quashed the declaration.
Thirdly, the media statement alleges that one of the aims of COMANGO is to champion rights that deviate from the religion of Islam. When one looks at the submission made by COMANGO to the United Nations Human Rights Council in March 2013, a copy of which was delivered at about the same time to the Ministry of Foreign Affairs, only four out of 63 recommendations deal with issues relating to lesbian, gay, bisexual, transgender, intersex and questioning (“LGBTIQ”) communities, sexual orientation and gender identity. Even these four recommendations are presented in the context of ending discrimination in law and practice. It is hard to imagine these four recommendations, which are grounded upon a call to non-discrimination of human beings, as constituting a threat to the belief and practice of Islam in Malaysia.
Fourthly, the media statement is mischievous in that it makes the highly prejudicial reference that most of the member organisations of COMANGO are non-Muslim-based, as though there were something wrong or illegal about that, when in fact there is not. This is highly irregular and very irresponsible.
Fifthly, the media statement is in error when it states that only 15 of the 54 member organisations of COMANGO are registered under the Act. The Ministry of Home Affairs does not appear to have access to accurate or up-to-date records, as several organisations listed as not being registered under the Act are in fact registered under the Act, including Association of Women Lawyers, Christian Federation of Malaysia, PS The Children, and Women’s Centre for Change, Penang.
Sixthly, the media statement again mischievously states that every society that intends to carry out activities legally in the country must be registered with the Jabatan Pendaftaran Pertubuhan Malaysia. It conveniently omits to state that some of the member organisations of COMANGO are in fact not societies, but companies registered under the Companies Act 1965 or bodies registered under some other law regarding registration of organisations, and therefore not required to be registered under the Act. By failing to make this point clear, the media statement perpetuates the impression that something illegal or amiss is taking place.
Seventhly, the media statement totally avoids mentioning that the Malaysian Government has been engaging with COMANGO since September 2008 when preparations for the 1st Universal Periodic Review of Malaysia by the United Nations Human Rights Council were being made. The Malaysian Government has had more than five years to check on the background of COMANGO and has had no problems working with it until now. To now declare COMANGO to be unlawful when for the past five years the Malaysian Government has had direct dealings with it smacks of mala fide.
Finally, by embarking on this course of action, the Malaysian Government has publicly made known that it has no intention of promoting and protecting the right to free speech or the right to freedom of assembly. Its only standard operating procedure appears to be to ban or declare unlawful any organisation or coalition of organisations that appears to promote views that are not in consonance with that of the Malaysian Government, or whose ongoing presence is a bane to its continuance in power.
The Malaysian Bar calls on the Malaysian Government to immediately retract the media statement and revoke the declaration of unlawfulness, flawed as it is on so many levels. Instead, it should welcome and constructively engage with COMANGO to adopt and implement as many of the 63 recommendations as possible. This can only lead to a more decent, honourable and human rights-positive country that all mature and right-thinking Malaysians hope for.
Christopher Leong
President
Malaysian Bar
10 January 2014