CASE N° MAL/11 - LIM GUAN ENG - MALAYSIA

Resolution adopted without a vote by the Inter-Parliamentary Council at its 161st session
(Cairo, 16 September 1997)

The Inter-Parliamentary Council,

Having before it the case of Mr. Lim Guan Eng, a member of the House of Representatives of Malaysia, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians in accordance with the " Procedure for the examination and treatment by the Inter-Parliamentary Union of communications concerning violations of human rights of parliamentarians ",

Taking note of the report of the Committee on the Human Rights of Parliamentarians (CL/161/10(a)-R.1), which contains a detailed outline of the case,

Taking account of the observations provided by the Malaysian delegation to the 98th Inter-Parliamentary Conference (September 1997),

Considering that Mr. Lim Guan Eng, son of opposition Democratic Action Party (DAP) leader Lim Kit Siang, Deputy Secretary General of that party and member of Parliament for Kota Melaka (Malacca), stated in January 1995 that " double standards " were being applied in the statutory rape case against the former Chief Minister of Malacca, Mr. Rahim Tamby Chik, because Attorney General Mohtar Abdulla had decided not to prosecute the latter, while the underage alleged victim, a fifteen-year-old Muslim schoolgirl, was placed in " protective custody " for ten days without parental consent,

Considering that, on 28 February 1995, Mr. Lim Guan Eng was accused under Section 4 (1)(b) of the Sedition Act of prompting " disaffection with the administration of justice in Malaysia "; that, in addition, on 17 March 1995, Mr. Lim Guan Eng was charged under Section 8 A(1) of the Printing and Publications Act with maliciously printing a pamphlet containing allegedly " false information ", specifically because he had used the term " imprisoned victim " in reference to the alleged rape victim,

Considering that Mr. Lim Guan Eng's statement reflected widespread public disquiet over the handling of the alleged rape case, that in November 1994 the daughter of Prime Minister Mahathir Mohammed published an article under the title " Whither Justice ? " in which she described the authorities' treatment of the girl as a " gross mockery of justice ",

Considering that, according to the authorities, Mr. Lim Guan Eng would not have been prosecuted had he made the offending statement in Parliament; that, however, according to the source, Malaysian MPs do not enjoy immunity from prosecution in sedition matters; that Mr. Lim Guan Eng reportedly criticised the Attorney General's handling of the case in Parliament and tabled a motion calling for his sacking without the Speaker directing him to withdraw any part of his speech describing the Attorney General as politically biased and applying double standards; that, he was instead charged on the basis of an unrecorded speech he had made outside Parliament,

Considering that Mr. Lim Guan Eng's trial opened in January 1996, but was suspended in March 1996 pending a test case ruling, delivered by the Federal Court in July 1996; that the standard of proof required at the end of a prosecution's case was that of " beyond reasonable doubt " and not the previously upheld standard of prima facie evidence,

Considering that, contrary to expectation, following the Federal Court's ruling, the judge in Mr. Lim Guan Eng's case found that the prosecution had in fact proved both charges against Mr. Lim Guan Eng " beyond reasonable doubt " and that the defence had a case to answer; that therefore his trial resumed,

Considering that, according to the sources, regarding the allegedly seditious verbal statements, the judge ruled that the report of a single junior police officer, unsupported by a sound recording as is normal practice in sedition cases, constituted sufficient evidence to proceed; that, as regards the charge of printing " false information ", the judge ruled that the prosecution had proven beyond reasonable doubt evidence suggesting that the words " imprisoned victim " were false - apparently ignoring assertions that the statutory rape victim had been detained by police for ten days without parental consent,

Considering that, according to the sources, the girl confirmed during the trial that she had indeed had sexual intercourse with Mr. Rahim Tamby Chik,

Considering that, according to the authorities, Mr. Rahim Tamby Chik had been interrogated, on account not of the girl's accusation but of anonymous letters, and that insufficient evidence had been found to prosecute Mr. Tamby Chik,

Considering that, according to the authorities, the Malaysian Constitution gives the Attorney General absolute discretion to submit or withdraw criminal charges against any person (Article 145/3); that in the relevant case it was his opinion that Mr. Lim Guan Eng contravened the two laws referred to by making untrue and seditious statements,

Considering that Mr. Lim Guan Eng was sentenced, on 28 April 1997, under Section 4 (1)(b) of the Sedition Act for prompting " disaffection with the administration of justice in Malaysia " to the maximum fine of RM 5,000 and, under Section 8 A(1) of the Printing and Publications Act for maliciously printing a pamphlet containing " false information ", to a fine of RM 10,000,

Recalling also that, according to the source, there was no valid proof that Mr. Lim Guan Eng had indeed made the offending statement since his speech was not recorded on tape or video, as would normally be required in sedition cases, but had been taken down by a police officer from notes and memory,

Considering that, according to the sources, the Attorney General, in an unprecedented move, appealed against this sentence before Mr. Lim Guan Eng had even filed his own appeal as he considered that the sentences imposed were " inadequate in view of the gravity of the offences which is against the administration of justice ",

Recalling that, under the Sedition Act, a maximum fine of RM 2,000 and three years' imprisonment and under the Printing and Publications Act, a maximum fine of RM 20,000 and three years' imprisonment may be imposed; considering, therefore, that the Attorney General seems to be calling for a custodial sentence to be imposed on Mr. Lim Guan Eng,

Considering that, under Malaysian law, MPs who are fined RM 2,000 or sentenced to one year's imprisonment automatically forfeit their seats,

Considering that Mr. Lim Guan Eng has throughout been going normally about his parliamentary duties; that, if he is found guilty and forfeits his mandate, the decision will only be applied once the Court judgment has became final,

1. Thanks the Malaysian delegation for its co-operation;

2 Stresses that parliamentarians, as protectors of human rights, have a special responsibility for safeguarding human rights and freedoms in their respective countries and must therefore concern themselves with alleged violations of those rights in whatever branch of the State they may occur;

3. Stresses that one of the main functions of Parliament is to oversee the action of the Executive Branch and that when parliamentarians publicly report or denounce a possible malfunction of the Judiciary or the Administration, they are simply fulfilling their constitutional role;

4. Affirms that in discharging this oversight function, members of Parliament are key players in the promotion and protection of human rights, for which they require the freedom of expression essential to performance of their parliamentary functions;

5. Firmly believes that even if Mr. Lim Guan Eng did make the alleged offending statement, he would merely have been fulfilling the mandate entrusted to him by his constituents and exercising his right to freedom of speech;

6. Is therefore dismayed at the judgment and the sentence handed down on Mr. Lim Guan Eng, which, if confirmed in the final instance, will result in forfeiture of his parliamentary seat;

7. Is deeply concerned at the allegation that improper evidence may have been used by the court;

8. Also expresses deep concern at the fact that, before Mr. Lim Guan Eng had even lodged his appeal, the Attorney General brought an appeal against the judgment seeking a more severe sentence, which, in view of the stiff sentence already imposed on Mr. Lim Guan Eng, is clearly aimed at having him imprisoned as well;

9. Emphasises that there was widespread public criticism of the Attorney General's handling of the statutory rape case, including from the Prime Minister's daughter herself, who called the Attorney General's attitude a " gross mockery of justice "; that, however, only Mr. Lim Guan Eng, an active member of the opposition, was prosecuted;

10. Can but infer from this fact that his prosecution and sentencing seem to be prompted by other than judicial considerations;

11. Notes that Mr. Lim Guan Eng has filed an appeal against the judgment, and earnestly hopes that he will finally not be singled out and convicted for a critical statement that was not considered to constitute an offence when made - in similar and even harsher terms - by others;

12. Requests the Secretary General to convey these considerations to the Speaker of the House of Representatives;

13. Requests the Committee to continue examining the case and report to it at its next session (April 1998).

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