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

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 165th session (Berlin, 16 October 1999)

The Inter-Parliamentary Council,

Referring to the outline of the case of Mr. Lim Guan Eng, of Malaysia, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/165/12(b)­R.1), and to the relevant resolution adopted at its 164th session (April 1999); referring also to the report on the Committee's on-site mission conducted from 30 November to 2 December 1998,

Considering the communications from the Executive Chairman of the Malaysian Inter­Parliamentary Group and Deputy Minister of Finance, dated 26 May and 22 September 1999, and the additional observations he supplied at the hearing held on the occasion of the 102nd Conference (Berlin, October 1999),

Recalling the following evidence on file: at the time of the submission of the complaint Mr. Lim Guan Eng, a member of Parliament and Deputy Secretary General of the opposition Democratic Action Party, was charged on 28 February 1995 under the Sedition Act with prompting disaffection with the administration of justice by publicly criticising the Attorney General's handling of a statutory rape case involving a 15-year-old schoolgirl and the former Chief Minister of Malacca, Tan Sri Rahim Tamby Chik, and the decision of a court to place the alleged rape victim in "protective custody"; on 17 March 1995, he was also charged under the Printing and Presses Publications Act with publishing false information by referring to the girl as "imprisoned victim"; on 28 April 1997, the Court found him guilty of both charges and sentenced him to the maximum fine of RM 5,000 under the Sedition Act and RM 10,000 (maximum fine 20,000) under the Printing and Presses Publications Act; on 1 April 1998, the Appeal Court rejected his appeal and imposed the concurrent 18-month prison term sought by the Attorney General; on 25 August 1998, the Federal Court upheld the appeal court judgment and Mr. Lim Guan Eng was arrested forthwith and taken to Kajang prison, where he served his sentence; on 21 March 1999 the State Governor of Malacca, who acts on the advice of a Pardon Board, turned down Mr. Lim Guan Eng's petition for pardon, and on 10 April 1999 the King, who acts on the advice of the Prime Minister, turned down Mr. Lim Guan Eng's petition for a lifting of his disqualification from Parliament; as a result, Mr. Lim Guan Eng has now definitely lost his MP status and will be barred from standing for election for the next five years; he will thus be unable to participate in the forthcoming legislative elections; on 25 August 1999, Mr. Lim Guan Eng was released having been granted, like every prisoner displaying good conduct, a one-third remission of his sentence,

Recalling the following facts gathered by the Committee's on-site mission (November/December 1998) from independent sources regarding the statutory rape case: the 15­year-old girl, together with her grandmother, lodged a complaint with the police alleging the girl's rape by Tan Sri Rahim Tamby Chik, then the Malacca Chief Minister. The police, during whose investigation the girl admitted having had sexual intercourse with Tan Sri Rahim Tamby Chik and 14 other men, took her into custody. At that time, her family had no access to her for 8 days, which prompted the grandmother to turn to Mr. Lim Guan Eng for help. Mr. Lim Guan Eng then made the issue public. Women's NGOs took up the matter when the Attorney General revealed the girl's sexual background publicly and stated that, while no evidence had been found against Tan Sri Rahim Tamby Chik, such evidence existed against 14 other men who had had sexual intercourse with her. According to the sources, those 14 men were all bound over to the court and none of them were sent to prison although Malaysian criminal law provides for a mandatory minimum prison sentence of five years for all rape convictions under Section 326 of the Penal Code (statutory rape). After the Attorney General had made his public statement, police sought the approval of the girl's father to apply for a court order remanding her to a "Welfare Centre for Wayward Girls", which it obtained; midway through court hearings, however, her father withdrew his application stating that he was able to take care of his daughter, who was pregnant at the time; the court nevertheless remanded her in the Centre,

Considering the observations made in this connection by the Executive Chairman of the Group in his note of 22 September 1999 that: (a) the protective custody of the schoolgirl in a rehabilitation centre for three years was unrelated to the decision of the Attorney General not to prosecute Tan Sri Rahim Tamby Chik; (b)  it was the father of the girl who had given his consent that his daughter be placed in protective custody for her own security and well-being, not for the purpose of questioning by the police; (c)  the girl, too, wanted such protection; (d)  neither the girl nor any other person lodged a complaint or police report regarding her imprisonment or alleging unlawful detention; (e)  the court made an order for the girl to be protected in a place of refuge solely for her welfare and protection,

Recalling that the Attorney General's handling of the case had at the time given rise to criticism from many quarters, including the Prime Minister's daughter, who, in an article published in November 1994 under the title "Whither justice ?", described the authorities' treatment of the girl as a "gross mockery of justice"; considering that in the aforementioned note, in reference to the Committee's position that "Mr Lim Guan Eng was far from being alone in criticising the Attorney General but was the only one to be prosecuted" (decision adopted at its 86th session, July 1999), the Executive Chairman of the Group vehemently reiterated that "the prosecution instituted against Lim Guan Eng is based on available admissible evidence and governed by legal consideration",

Recalling that the Inter-Parliamentary Union had called on H. M. the King and the Governor of Malacca to lift Mr. Lim Guan Eng's disqualification from Parliament and grant him a full pardon giving him a clean slate; that the Committee's on-site mission intended to act in support of that appeal but was unable to do so since the Governor of Malacca, having invited the mission for a meeting, withdrew his invitation at the last minute and the Prime Minister was unavailable for a meeting owing to time constraints; recalling also that it had called on the Malaysian National Group to act in favour of that appeal; considering that the Malaysian authorities have so far failed to respond to the IPU's appeal in favour of Mr. Lim Guan Eng,

Considering that the Malacca Pardon Board, on whose advice the Governor must act, was composed of a representative of the Attorney General and members who all belong to parties affiliated or belonging to the ruling UMNO party, one of them being a bitter political rival of Mr. Lim Guan Eng, for which reason the sources believe that no impartial decision on Mr. Lim Guan Eng's pardon petition could be expected from such a body,

Considering the observations from the Executive Chairman of the Group supplied in a note of 22 September 1999: "By uttering those false words, Mr. Lim Guan Eng who is possessed with the power to influence public opinion, had misled the public, destroyed the equilibrium of society and caused untold harm and injury to the peace and security of our country ... Mr. Lim Guan Eng's criticism against the court had exceeded the legitimate bounds of permissible criticism and has become criminal conduct producing a serious consequence as it has brought about hatred and contempt among the Malaysian populace against the Courts",

Considering also the excerpt from the judgment of the appeal court quoted in a note from the Executive Chairman of the Group dated 26 May 1999: "It is of vital importance that the public enjoy confidence in the administration of justice of which the courts form an integral part. Speeches or publications that bring the administration of justice into hatred or contempt produce a serious consequence. For they have the effect of destroying public confidence in one of the pillars of the democratic system of government . We are not for a moment saying that no criticism is ever possible ... So long as a criticism of a judge is made bona fide, based on the fact and in conformity with law, none, least of all a judge, should mind; for there is no acquisition of knowledge without criticism ... It is only when criticism exceeds its legitimate bounds and becomes proscribed conduct that the courts will intervene ...",

Bearing finally in mind that Malaysia is a member of the United Nations and thus bound to respect the rights and freedoms guaranteed under the Universal Declaration of Human Rights, Article 19 of which enshrines the right to freedom of expression,

1. Thanks the Executive Chairman of the Malaysian National Group for the information and observations supplied and for his cooperation;
2. Reiterates its firm belief that political considerations underlay the proceedings against Mr. Lim Guan Eng for public statements made in the exercise of his parliamentary mandate and his subsequent sentencing to a heavy prison term leading to loss of his parliamentary mandate, suspension of his right to stand for election for the next five years and a ban on exercising his profession; expresses its indignation at this series of facts;
3. Reaffirms that Mr. Lim Guan Eng, a young opposition leader, was singled out among the many people who voiced criticism, some in much stronger terms than he, of the authorities' handling of the statutory rape case that gave rise to his sentencing;
4. Stresses once again that, in advancing the criticism on account of which he was sentenced, Mr. Lim Guan Eng was merely exercising his right to freedom of expression and carrying out his duty as a member of Parliament; considers that it is essential that parliamentarians, as representatives of the people and guardians of human rights, enjoy the necessary freedom of expression to denounce what they perceive on serious grounds to be any malfunction of State administration, and affirms that, in denouncing such malfunction, parliamentarians are instrumental in sustaining the confidence of the people in their public institutions and authorities;
5. Notes that the function of oversight of the Executive attached to MPs' functions would be meaningless if it did not include the right to differ in opinion from those in power and to scrutinise their actions, including those relating to the administration of justice, and stresses that, in exercising their oversight function, parliamentarians are essential players in the promotion and protection of human rights;
6. Deeply deplores the fact that Mr. Lim Guan Eng's appeals for pardon and lifting of his disqualification from Parliament, for which more than 300,000 Malaysians had expressed their support, were turned down and that the Council's appeals to the same effect have also been unavailing;
7. Notes that the authorities merely released Mr. Lim Guan Eng after he had served two-thirds of his prison sentence, in accordance with the practice of granting remissions for good conduct;
8. Feels compelled to close the case of Mr. Lim Guan Eng since no further remedy is henceforth available to him;
9. Deeply deplores this state of affairs, and calls on the Malaysian Parliament and the Malaysian National Group to do their utmost to ensure that its members, including opposition members, may fulfil without fear of prosecution and, in particular imprisonment the mandate entrusted to them by the people.

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