Cases examined by the Special Rapporteur (June 2009 – July 2010)
A/HRC/15/37/Add.1, 15 September 2010
XX. Malaysia: Alleged sexual abuses against girls from the Penan Community in the Baram area, Sarawak
272. In a letter dated 20 November 2008, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, together with the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, brought to the attention of the Government of Malaysia information received in relation to sexual abuses against girls from the Penan Community in the Baram area, Sarawak. The Government of Malaysia responded in a communication dated 24 November 2009.
Summary of allegations received by the Special Rapporteur and transmitted to the Government on 20 November 2008
273. The contents of the Special Rapporteurs’ letter of 20 November 2008 transmitting information regarding this situation were included in the annual report of the Special Rapporteur to the Human Rights Council of 2009 (A/HRC/12/34/Add.1 paras. 242-245). In summary, according to the information received and transmitted in that letter, since the arrival in the 1990s of logging companies in areas inhabited by the Penan community, workers from Malaysian companies, in particular Interhill and Samling, have been harassing and in a number of cases raping Penan women and girls. Reportedly, Penan children often have difficulties getting to school; by foot, the journey can take them as long as one week, however if they travel in vehicles they can reach their schools within three to six hours. The information indicates that, as Penan families cannot afford private transport, the Penans have become dependent on logging company vehicles for accessing areas outside their settlements, including schools.
Response from the Government of 24 November 2009
274. The Government of Malaysia responded to the above information and allegations in a letter of 24 November 2009. The Special Rapporteur notes that a response had been requested within 60 days of the communication, which had lapsed on 19 January 2009. The following is a summary of the Government’s response:
a) Since 1995 there has been only one police report involving a Penan girl and three police reports involving Penan women filed with the relevant authorities.
b) The case of the minor involved a 14-year-old Penan girl who claimed that she was raped. Upon investigation the police had insufficient evidence to prosecute on the following grounds: (a) the medical doctor’s report stated that the victim’s hymen was intact; (b) the victim could not identify the suspects; and (c) witnesses/landlord denies knowing or even allowing the victim to stay at his house.
c) The second police report was filed by the victim, known as Cynthia, (not her real name). Cynthia’s ordeal was reported in the local newspaper, The Star, on 6 October 2008 in an article entitled Against Their Will. According to this article, Cynthia was abused and raped by loggers when she hitched a ride on the logging company’s vehicle to go to school. As a result Cynthia gave birth to a baby girl in July 2008. The Investigation Papers were submitted to the SFC of Sarawak on 17 December 2008. The SFC instructed the police to conduct further investigation.
d) A third police report was lodged by DSP Roselina from the Police Contingent Headquarters based on the article in The Star, dated 6 October 2008 and entitled Against Their Will. Upon investigation and based on the article, a logger came to Rina’s (the victim, not her real name) house in a drunken state and raped her. As a result, Rina gave birth in May 2005. The Investigation Papers were submitted to the SFC in Sarawak on 17 December 2008. The SFC has instructed the police to conduct further investigation.
e) A fourth police report was filed by a victim whose case was also discussed in the aforementioned Star article. According to the article, Mindy (not victim’s real name) was allegedly raped by a logger named Ah Heng and gave birth to two children. The Investigation Papers were submitted to the SFC in Sarawak on 17 December 2008. The SFC has instructed the police to conduct further investigation.
f) Apart from the police investigations into the foregoing incidents, on 8 October 2008, the Government of Malaysia established the “National-Level Task Force to Investigate the Accusations of Sexual Abuse towards the Penan Girls in Sarawak” (“the Task Force”). The Task Force is led by the Ministry of Women, Family and Community Development, and chaired by the then Minister of Women, Family and Community Development, Dato Sri Dr. Ng Yen Yen. Members of the Task Force consists of senior officials from other ministries and agencies, including the Ministry of Home Affairs; the Ministry of Health; the Ministry of Education; the Ministry of Information, Community and Culture; the Ministry of Rural and Regional Development; the Sarawak Government; and non- governmental organizations. The Task Force was created to investigate the accusations of sexual exploitation of Penan women and schoolgirls in Sarawak by the logging company workers.
g) Members of the Task Force participated in a visit to the Baram area of Sarawak from 10 to 15 November 2008. As a result of the visit, the Task Force proposed improvements that fall under the jurisdiction of several ministries and government agencies.
h) In its report, the Task Force unanimously concluded, among others, that:
• Sexual abuse of the Penan women and school girls by outsiders dealing with the Penan tribe, including the workers of logging companies and traders did occur;
• Sexual abuse mostly occurred due to the victims’ dependency on transportation owned by the logging company and the presence of outsiders dealing with the village people to purchase of forest products;
• The Penan community are exposed to sexual abuse and exploitation due to: poverty; isolated places of residence; high dependency on logging companies, not only for transport for health services and schooling, but also for basic necessities such as water, electric generators, etc; lack of trust towards higher authorities; and the negative perception, prejudice and negative stereotypes with labels such as lazy, liars and alcoholics directed at the Penan by the rest of Malaysian society making the Penan feel alienated and suffering from low esteem;
• Lack of infrastructure, such as roads, in addition to the lack of public transportation led to the difficulties faced by the Penan villagers in dealing with outsiders, including Government agencies; and
• To ensure more balanced development, there should be increased involvement of the Penan tribe in the decision-making processes relevant to them.
i) The findings of the Task Force by no means determine the criminal liability of any person or groups of persons; the investigations with regards to the abovementioned cases are still on-going, and should there be sufficient evidence of any criminal wrong-doing, the perpetrators would be brought to court for trial. If a person is charged for the offence of rape under section 375 of the Malaysian Penal Code, upon conviction, those found guilty could be punished with a very heavy sentence for a term of not less than five years and not more than thirty years and shall also be liable to whipping.
j) With regard to measures taken by both the Federal and Sarawak Governments to ensure the safety of Penan women and girls and ensure that Penan children provided safe affordable transportation to reach their schools, the Federal Government has been working in collaboration with the Sarawak State Government to initiate several development programs to ensure that the Penan children have safe access to schools specifically through the Service Centre Development in the Penan area. The Service Centres in the Penan area are equipped with facilities including schools, clinics and agricultural stations. Additionally, the State Government of Sarawak provides financial support for transportation for Penan children that stay too far from schools. The implementation of the transportation service is managed by the Resident’s and District Office in coordination with the schools involved.
k) Taking note of article 4 (c) & (d) of the United Nations Declaration on the Elimination of Violence against Women, the Malaysian Government enacted or amended laws to punish acts of violence against women who are subjected to violence. Women who are subjected to violence have been provided with unhindered access to justice and health services. The Government has set up programs for sexually abused women and also provides legal assistance for those who cannot afford their own legal counsel.
l) The Government of Malaysia reaffirms its commitments to continue to fully protect indigenous peoples in Malaysia. Malaysia’s actions are fully in compliance with the requirements of this Declaration, in particular article 22(2) which provides that States shall take measures, together with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination, as well as the provisions of Human Rights Resolution 2005/41 – Elimination of violence against women. In Malaysia, there are long-established structural programs and mechanisms to consult indigenous peoples and address issues raised by the indigenous communities, in compliance with article 21(2) of the Declaration.
m) The information and allegations contained in the Special Rapporteur’s communication do not reflect the accurate facts of the situation. The investigation on the sexual abuses against Penan women and girls will be conducted in accordance with the prevailing domestic laws of Malaysia which are fully consonant with the norms and standards of international law.
Observations of the Special Rapporteur
275. The Special Rapporteur thanks the Government of Malaysia for its detailed response to the communication of 20 November 2008. The Special Rapporteur is pleased to hear that the Government formed a Task Force to investigate the troubling accusations of sexual exploitation of Penan women and schoolgirls in Sarawak by the logging company workers. He notes the recommendations made by the Task Force to better protect the rights of indigenous women and girls in the region and urges hopes that they be fully implemented.
276. The Special Rapporteur especially takes note of the Task Force’s identification of the underlying concerns affecting the safety of Penan women and girls that relate to the Penan indigenous people more broadly. He is concerned about the Task Force’s finding of the “negative perception, prejudice and … stereotypes with labels such as lazy, liars and alcoholics directed at the Penan by the rest of Malaysian society making the Penan feel alienated…” Additionally, the Special Rapporteur supports the Task Force’s conclusion that “there should be increased involvement of the Penan tribe in the decision-making processes relevant to them.” The Special Rapporteur will continue to monitor the situation of Penan women and girls, as well as the ongoing situation of the Penan indigenous peoples, including their ability to participate in decision-making affecting them.