Section 1. Respect for the Integrity of the Person, Including Freedom from:
e. Denial of Fair Public Trial
Three constitutional articles provide the basis for an independent judiciary; however, other constitutional provisions, legislation restricting judicial review, and executive influence over judicial appointments limited judicial independence and strengthened executive influence over the judiciary. The judiciary frequently deferred to police or executive authority in cases those parties deemed as affecting their interests.
Members of the Malaysian Bar Council, NGO representatives, and other observers expressed serious concern about significant limitations on judicial independence, citing a number of high-profile instances of arbitrary verdicts, selective prosecution, and preferential treatment of some litigants and lawyers.
According to Lawyers for Liberty, the former government was guilty of “concerted attempts to politicize the judiciary,” including forcing judicial officers to attend a political lecture in May 2017 “in flagrant breach of the doctrine of separation of powers and the concept of an independent judiciary.”
In August court of appeal judge Hamid Sultan Abu Backer said he was “severely reprimanded” by an unnamed senior judge for dissenting in a high-profile case and was never again assigned to hear public interest cases related to constitutional matters.
The constitution provides for the rights to a fair and public trial, and the judiciary generally enforced this right. The civil law system is based on British common law and defendants are presumed innocent until proven guilty. Defendants have the right to be informed promptly of the charges against them and the right to a timely trial and the right to be present at their trial. Defendants have the right to communicate with an attorney of their choice or to be appointed counsel at public expense if they face charges that carry the death penalty. Defendants also may apply for a public defender in certain other cases.
According to the Malaysian Bar Council, defendants generally had adequate time and facilities to prepare a defense if they had the means to engage private counsel. Otherwise, defendants must rely on legal aid and the amount of time to prepare for trial is at the discretion of the judge. Authorities provide defendants free interpretation in Mandarin, Tamil, and some other commonly used dialects from the moment charged through all appeals. The right to confront witnesses is limited by provisions allowing the identity of prosecution witnesses to be kept secret from the defense before a trial, which inhibits cross-examination of those witnesses. Defendants may present witnesses and evidence on their behalf. Limited pretrial discovery in criminal cases also impeded the defense. Strict rules of evidence apply in court. Defendants cannot be compelled to testify or confess guilt.
Defendants may appeal court decisions to higher courts, but only if the appeal raises a question of law or if material circumstances raise a reasonable doubt regarding conviction or sentencing. The Malaysian Bar Council claimed these restrictions were excessive.
In cases related to terrorism or national security, the law allows police to hold persons even after acquittal against the possibility of appeal by the prosecution.
Many NGOs complained women did not receive fair treatment from sharia courts, especially in cases of divorce and child custody (see section 6).
POLITICAL PRISONERS AND DETAINEES
In May opposition leader Anwar Ibrahim was released from detention after receiving a full royal pardon for consensual sodomy, a charge he denied and many international observers and human rights organizations viewed as politically motivated. Until his release, authorities generally permitted Anwar’s lawyers and family to visit him; however, in April prison authorities banned attorney Latheefa Koya from seeing Anwar because she violated prison regulations by allegedly releasing a statement to the press in which Anwar purportedly criticized a controversial bill in parliament. Family members said prison officials at times limited Anwar’s access to medical treatment for a shoulder injury.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
Individuals or organizations may sue the government and officials in court for alleged violations of human rights; however, a large case backlog often resulted in delays in civil actions, to the disadvantage of plaintiffs. The courts have increasingly encouraged the use of mediation and arbitration to speed settlements.