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

Resolution adopted without a vote by the Inter-Parliamentary Council
at its 162nd session (Windhoek, 11 April 1998)

The Inter-Parliamentary Council,

Referring to the outline of the case, as contained in the report of the Committee on the Human Rights of Parliamentarians (CL/162/11(a)-R.1), and to the resolution adopted at its 161st session (September 1997) concerning the case of Mr. Lim Guan Eng, a member of the House of Representatives of Malaysia,

Taking account of the information and observations supplied by the Malaysian delegation at the hearing held on the occasion of the 99th Inter-Parliamentary Conference (April 1998),

Further taking account of the information supplied by the sources on 5 and 6 April 1998,

Recalling 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 " for having stated that " double standards " were being applied by the Attorney General in a 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 allegedly without parental consent,

Recalling 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 rape victim,

Recalling 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 when asked why the Attorney General had not prosecuted any of the other persons voicing the same criticism as Mr. Lim Guan Eng, the Malaysian delegation stated that this was a matter for the Attorney General; for the Attorney General to institute investigations, a police report was required; as no police report was issued on Mr. Rahim Tamby Chik, the Attorney General was unable to institute investigations regarding him,

Considering that the girl had admitted having had sexual intercourse with Mr. Abdul Rahim Tamby Chik and with 14 other men; that while the police asked her to lodge a complaint against those men, they did not ask her to do so in regard to Mr. Tamby Chik; that whereas the 14 men, on the basis of her police report, were later charged in court, Mr. Tamby Chik was never charged or detained; that in this respect, the Malaysian delegation stated that there was not enough evidence to prosecute Mr. Tamby Chik and stressed that this was no indication of bias since, in other cases, Chief Ministers had been prosecuted,

Recalling 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,

Recalling that, following the Federal Court's ruling, the judge in Mr. Lim Guan Eng's case unexpectadly 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,

Recalling that 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,

Recalling 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,

Recalling 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 ",

Considering that, according to the sources, the judgment is dated 28 February 1997, which in their view is strange as the judge, when delivering the judgment orally on 28 April 1997, stated that " he was not ready with the written judgment "; that, moreover, the sources affirm that the written version of the judgment " radically departs " from what was read in Court. The sources fear that there may be a miscarriage of justice as Mr. Lim Guan Eng's case may have been " pre-judged ",

Considering that, on 1 April 1998, a three-judge panel of the Appeal Court unanimously dismissed Mr. Lim Guan Eng's appeal and imposed the two concurrent 18-month prison terms sought by the Attorney General; that the court ordered a stay of execution on the prison sentence; that, however, as Mr. Lim Guan Eng was unable to raise bail in time, he was hundcuffed and had to stay overnight in prison,

Considering that Mr. Lim Guan Eng will lodge a fresh appeal with the Federal Court, Malaysia's highest judicial authority, and has requested that the matter be ruled upon by a full bench of nine judges,

Considering that if the sentence becomes binding, Mr. Lim Guan Eng will forfeit his seat in Parliament,

Bearing finally in mind that, according to the sources, on 6 April 1998 Prime Minister Mahathir publicly defended the 36-month jail term handed down on Mr. Lim Guan Eng; that - in view of the sources - this makes it difficult for the Federal Court to fairly and independently exercise its judicial jurisdiction in Mr. Lim Guan Eng's appeal case against both the conviction and the sentence, given that the " Yang di Pertuan Agong ", the constitutional body competent to make all judicial appointments, has to act on the Prime Minister's advice,

1. Thanks the Malaysian delegation for the information and observations it provided;
2. Is appalled at the decision handed down by the Appeals Court setting aside the fine and imposing the three-year prison term sought by the prosecution;
3. Expresses deep concern at the public statement made by the Prime Minister on a sub judice case and fears, particularly in view of his role with regard to judicial appointments including that of the judges of the Federal Court, that this may denote a clear biais and impede the independent and impartial functioning of the judiciary in the case of Mr. Lim Guan Eng;
4. Finds the Prime Minister's public statement all the more disturbing since Mr. Lim Guan Eng seems to have been singled out in this case as the following facts tend to indicate: the police asked the statutory rape victim to lodge a police report against 14 men but not against Mr. Rahim Tamby Chik, despite her having admitted having had sexual intercourse with him; that, among the many critics of the Attorney General's handling of the case in question, only a police report on Mr. Lim Guan Eng was filed, which led to his prosecution;
5. Can but firmly reiterate its previous concerns and considerations as expressed in the resolution on the case adopted by the Inter-Parliamentary Council at its 161st session in September 1997;
6. Reaffirms that even if Mr. Lim Guan Eng had made the alleged offending statements, which he denies, he would merely have been fulfilling the mandate entrusted to him by his constituents and carrying out his parliamentary oversight function, which includes inquiring into the administration of justice;
7. Notes that Mr. Lim Guan Eng is free on bail and is to lodge a final appeal with the Federal Court;
8. Earnestly hopes that Mr. Lim Guan Eng 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;
9. Deems it necessary, in view of the important issues involved in this case, to gather further information directly from the authorities, the parliamentarian concerned and his lawyers, and consequently entrusts the Committee on the Human Rights of Parliamentarians with carrying out an on-site mission for this purpose;
10. Notes with satisfaction that the Malaysian delegation has stated its intention to relay the Committee's concerns and intentions to the competent Malaysian authorities;
11. Requests the Secretary General also to convey these considerations to the Speaker of the House of Representatives, inviting him to ensure that the mission of the Committee can be received in Malaysia in the very near future;
12. Requests the Committee on the Human Rights of Parliamentarians to continue examining the case and report to it at its next session (September 1998).

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