Ongoing arbitrary detention of five HINDRAF members / Health deterioration of Mr. P. Uthayakumar

April 22, 2008

The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), has received new information and requests your urgent intervention in the following situation in Malaysia.

New information:

The Observatory has been informed by reliable sources, including SUARAM, of the health deterioration of Mr. P. Uthayakumar, legal adviser of the Hindu Rights Action Force (HINDRAF), while arbitrarily detained.

According to the information received, Mr. P. Uthayakumar, who has been arbitrarily detained since December 13, 2007, along with four other members of HINDRAF (See background information), an NGO defending the rights of the Indian minority in Malaysia, is a diabetic. However he is not provided with a diabetic diet and, for the past month or so Mr. Uthayakumar has been denied access to his medication. Although his relatives had handed the necessary medication to the prison officer Chief Inspector Ayob, they were then told that those medicines “went missing”. A report was lodged to the Taiping Prisons Director, Mr.Yasuhimi, but to no avail.

Mr. Uthayakumar made six written attempts to see the Director of the Kamunting Camp (KEMTA) in order to inform him about his much needed medication and diet. However, the Director neither replied nor did he make any attempts to see him.

On April 7, 2008, Mr. Uthayakumar was admitted at the Taiping General Hospital, Perak Malaysia, as his sugar level was at 18.8, which is three times more than the normal level of 6. His protein and uric acid levels were also very high. When his family visited him, he looked very fragile and weak. He was hand-cuffed to the bed despite being very ill. The family was informed that he was not on any particular diabetic diet and was still being given rice and other sugar products for meals.

During his stay in hospital, Mr. Uthayakumar was informed by the doctor that there was some damage to his eyesight (retinopathy) and his heart muscles may have been damaged but that could only be confirmed after an ECO cardiogram test, which was fixed on April 28, 2008. There was also excessive urea and protein in his blood system and his blood pressure was still very high. Yet, on April 9, 2008, Mr. Uthayakumar was discharged prematurely of the hospital; despite his blood sugar level being recorded at 13.5, and brought back to the Kamunting prison.

On April 13, 2008, Mr. Uthayakumar’s lawyer handed over his diabetic medication to a prison officer but Mr.Uthayakumar never received them. A written request was made to the Prison Director on April 17, 2008 but still to no avail. On April 18, 2008, Mr. Uthayakumar was referred to the prison’s clinic hospital assistant (H.A), who wanted him to take some other medication, as the Prison Director was refusing to hand over to him his medication.

The Observatory points out that tthere is no resident doctor or visiting doctor at the Kamunting prison. In cases of emergency, Mr. Uthayakumar will have to be rushed to the Taiping Hospital, which is about an hour drive and with no modern medical facilities.

Furthermore, the Observatory recalls that Mr. Uthayakumar was arrested along with Messrs. M. Manoharan, R. Kengadharan, V. Ganabatirau, three lawyers and T. Vasanthakumar, HINDRAF organising secretary, who are also detained in poor conditions. Among others, they are kept in solitary confinement for more than 16 hours a day; they have limited visiting rights with family members; they do not have access to Television, computers or up to date books, magazines and newspapers in the resource centre; the keys to their cells are kept some distance away in the administration block leading to potential delay in assistance in case of emergency; they are denied their right to worship. Their relatives refused to lodge a formal complaint for fear that they might lose their limited visiting rights and the prisoners may be subjected to arbitrary disciplinary actions.

The Observatory considers the detention of these five HINDRAF leaders as arbitrary insofar as several fundamental rights contained in the UN Universal Declaration of Human Rights such as the right to a fair trial, the right to legal counsel, the right to defend oneself in open court and the right to be presumed innocent until proven guilty have not been observed.

Moreover, the Observatory expresses its deep concern about the conditions of detention of Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar, and recalls that Malaysia was elected to the United Nations Human Rights Council in June 2006 for three years and is committed in this regard to “uphold the highest standards in the promotion and protection of human rights”[1].

Background information:

On December 13, 2007, Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar were arrested in Kuala Lumpur by the Special Branch police officers under Section 8 (1), which allows the person to be detained for any period not exceeding two years, of the Internal Security Act (ISA).

Mr. Kenghadharan was the first to be arrested at his office in Petaling Jaya at about 12:30 p.m. by a team of police from Bukit Aman, followed by Mr. Ganabatirau, who was reportedly picked up by the police in Seremban. Mr. Vasanthakumar was reportedly nabbed at about 2:00 p.m. at Brickfields. Mr. Manoharan is believed to have been arrested while he visited Mr. Kenghadharan at Bukit Aman and Mr. Uthayakumar was reportedly taken away from his legal firm in Bangsar.

On November 25, 2007, HINDRAF had organised a mass rally in Kuala Lumpur which was reportedly violently repressed and turned violent. Thirty-one of the protesters were charged with attempted murder and causing mischief with some of them also facing a third charge of illegal assembly.

According to the information received, the police have since been targeting HINDRAF lawyers over the past few weeks. The crackdown started with the arrest of chairperson, Mr. P. Waythamoorthy, Mr. P. Uthayakumar and Mr. Ganabatirau on November 23, 2007. They were then charged with sedition in Klang. Then, Mr. Uthayakumar was arrested and charged on another count of sedition in Kuala Lumpur. He was arrested once more and kept overnight in remand before being released on December 12, 2007 without being charged.

On January 24, 25 and 28, 2008, the High Court of Kuala Lumpur heard a legal challenge to the ongoing detention of Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar[2]. At the end of the hearing, the court said it would give its judgment on February 26, 2008. On that date, the Kuala Lumpur High Court rejected their habeas corpus applications.

On February 26, 2008, the lawyers of the five HINDRAF members filed an appeal to the Appeal Court. On April 2 and 3, 2008, the Court heard submission from both parties. The judgment has not been given yet.

Actions required:

Please write to the Malaysian authorities, urging them to:

1. Guarantee in all circumstances the physical and psychological integrity of Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar;
2. Ensure that Mr. P. Uthayakumar be granted all necessary medical treatment, if necessary in specialist medical facilities outside the prison where he is held;
3. Guarantee their right to receive visits and communicate with their lawyers and relatives;
4. Release Messrs. P. Uthayakumar, M. Manoharan, R. Kenghadharan, V. Ganabatirau and T. Vasanthakumar immediately and unconditionally as their detention is arbitrary;
5. Put an end to all acts harassment against human rights defenders in Malaysia;
6. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly on December 9, 1998, especially its Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, as well as Article 12.2, which provides that “the State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration”;
7. More generally, ensure in all circumstances the respect for human rights and fundamental freedoms in accordance with international and regional human rights instruments ratified by Malaysia.

Addresses:

• Dato’ Seri Abdullah bin Haji Ahmad Badawi, Prime Minister and Minister of Internal Security Prime Minister’s Office Malaysia, Perdana Putra Building, Federal Government Administrative Centre, 62502 PUTRAJAYA, Selangor, Malaysia., Tel: + 60 3 8888 6000, Fax: + 60 3 8888 3444, Email: ppm@pmo.gov.my
• Tan Sri Musa Hassan, Inspector General of Police, Ibu Pejabat Polis Diraja Malaysia, 50560 Bukit Aman, Kuala Lumpur, Malaysia, Tel: +603 2262 6015 Fax: +603 2272 5613 / 603 2273 1326.
• Mr. Tan Sri Abu Talib bin Othman, Chairman of the National Human Rights Commission of Malaysia (SUHAKAM), Tingkat 29, Menara Tun Razak, Jalan Raja Laut, 50350 Kuala Lumpur, Malaysia; Fax-03-26125620; Email: humanrights@suhakam.org.my
• Ambassador King Bee Hsu, ICC-1er/ H, Pré-Bois 20, P.O. 1834, CH-1215, Geneva 15, Switzerland, Email : mwgeneva@ties.itu.int, Fax: +4122 710 75 01
• Embassy of Malaysia in Brussels, 414 A avenue de Tervueren, 1150 Woluwe-Saint-Pierre, Belgium, Tel: + 32 2 776 03 40. Fax: + 32 2 762 50 49.

Please also write to the embassies of Malaysia in your respective countries.

Geneva - Paris, April 22, 2008

Kindly inform the Observatory of any action undertaken quoting the code number of this appeal in your reply.

The Observatory, a FIDH and OMCT venture, is dedicated to the protection of Human Rights Defenders and aims to offer them concrete support in their time of need.

The Observatory was the winner of the 1998 Human Rights Prize of the French Republic.

To contact the Observatory, call the emergency line:
Tel and fax: FIDH : +33 (0) 1 43 55 20 11 / 33 1 43 55 18 80
Tel and fax: OMCT : + 41 22 809 49 39 / 41 22 809 49 29
E-mail : Appeals@fidh-omct.org

[1] See OP9 of the General Assembly Resolution A/RES/60/251.

[2] See Observatory Press Release, January 31, 2008.