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Wednesday, 17 April 2013


Dr Lin, Tan Sri Simon & Datuk Kuthubul during the Proham RTD held on April 16, 2013
By Dr Lin Mui Kiang (Prohan Hon Member)

Why should a nation-state ratify united nation human rights conventions & how does this process enhance democracy and good governance?

The United Nations Charter 1945. It embodies the principles of equality and non-discrimination. It underlines respect for human rights and for fundamental freedoms for all without distinction as to race, colour, sex, language or religion, political or other opinion, national or social origin, property, birth or other status. These principles have been further developed in the 1948 Universal Declaration of Human Rights and in all core international human rights treaties.
Human Rights principles

Human rights are universal and inalienable. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination.
Human rights are equal and non-discriminatory. This principle is present in all the major human rights treaties and provides the central theme of some international conventions such as the ICERD and CEDAW.  

Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights. At the individual level, while we are entitled to our human rights, we should also respect the human rights of others.

International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties to respect, to protect and to fulfil human rights and to protect individuals and groups against human rights abuses. Through ratification, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties.
The UPR was created in 2006 and has reviewed the human rights records of all 193 UN Member States by October 2011. It reminds States of their responsibility to fully respect and implement all human rights and fundamental freedoms. The aim of this mechanism is to improve the human rights situation in all countries and address human rights violations wherever they occur.

Human Rights & Good Governance

Human rights is part and parcel of good governance. According to the former Commissioner on Human Rights, Louise Arbour, the key attributes of good governance are: transparency; responsibility; accountability; participation; responsiveness to the needs of the people; commitment to sustainable human development; and providing an enabling environment conducive to the enjoyment of human rights.

It encompasses full respect of human rights, the rule of law, effective participation, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance.
Good governance also relates to political and institutional processes and outcomes that are necessary to achieve the goals of development. It is the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights in a manner free of abuse and corruption, and with due regard for the rule of law.

The true test of "good" governance is the degree to which it delivers on the promise of human rights: civil, cultural, economic, political and social rights. The key question is: are the institutions of governance effectively guaranteeing the right to health, adequate housing, sufficient food, quality education, fair justice and personal security?
The links between good governance and human rights can be organized around four areas:

Democratic institutions - for the public to participate in policy and decision making either through formal institutions or informal consultations.

Service delivery - to provide public goods which are essential for the protection of a number of human rights, such as the right to education, health and food.

Rule of law – should include legal reform, public awareness-raising on the national and international legal framework, and capacity-building or reform of institutions.

Anti-Corruption - initiatives may include anti-corruption commissions, mechanisms of information sharing, and monitoring governments’ use of public funds and implementation of policies.

The interconnection between human rights and good governance has been made by the international community in a number of declarations. The concept of good governance can be linked to principles and rights set out in the UDHR and the main international human rights instruments.
Other declarations such as the Declaration on the Right to Development in 1986 proclaims that every human person and all peoples “are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development”. In the Millennium Declaration 2000, world leaders affirmed their commitment to promote democracy and strengthen the rule of law as well as to respect internationally recognized human rights and fundamental freedoms, including the right to development.

Ratification of core human rights Conventions

80% of States have ratified four or more, of the nine core human rights conventions. Malaysia, however, has signed and ratified only three. The first two, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) were ratified by Malaysia in 1995 but both still have important reservations, despite a few having been removed in July last year. And the last was the Convention on the Rights of Persons with Disabilities was signed and ratified in July 2010.

Malaysia has yet to sign or ratify the other six core UN Human Rights Conventions, namely: the International Convention on the Elimination of all Forms of Racial Discrimination; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the UN Conventions against Torture; Migrant Workers' Rights; and On Enforced Disappearance. In addition, Malaysia is yet to sign or ratify the 1951 UN Convention on Refugees.

Pursuant to the 2009 UPR, Malaysia agreed to examine other international human rights treaties and take steps to accede to the remaining core UN human rights conventions as well as the 1951 Convention on Refugees and its Optional Protocol.  In 2010, the Deputy Minister of Foreign Affairs, Senator Kohilan Pillay announced that the Government had set up a Technical Committee to look into the ratification of the human rights treaties, but until now there has not been any progress. In 2012, the Legal Division of the PM’s Department initiated the meetings for the drafting of the National Human Rights Action Plan. But that too has not moved forward.

Internationally, Malaysia has demonstrated its continuing commitment to being part of the global human rights community. As you are aware, Malaysia is a member of the UN Human Rights Council for a second term since its formation in 2006, and has pledged to uphold the highest standards in the promotion and protection of human rights.

The government has also been promoting its Global Movement of the Moderates and telling the world that Malaysia is a respected and model moderate & progressive Muslim country which will continue to advocate the agenda for global peace & proserity through moderation for international peace, cultural understanding and interfaith harmony. All these need be translated into reality and the government will act swiftly to reform its relevant laws, policies, and practices to allow it to fulfill all of these commitments. This will greatly enhance Malaysia’s credibility and influence in the UN Human Rights Council and also in the international community.

The work of the UN globally

The UN works globally to help people and nations everywhere build and strengthen democratic systems. As the Secretary General Ban Ki Moon has stated “Experience has taught us, time and again, that democracy is essential to achieving our fundamental goals of peace, human rights and development. Human rights and the rule of law are best protected in democratic societies. And development is much likelier to take hold if people are given a genuine say in their own governance, and a chance to share in the fruits of progress”. Consistent with these words, the Secretary General both publicly welcomed the Arab Spring in 2011 and indicated that, if constructively consolidated, its gains will truly reflect the best aspirations and ideals of the UN Charter.

Democracy is closely linked with a set of essential rights, liberties, and opportunities. For democratic processes to gain ground and be sustained, such rights, freedoms, and opportunities must necessarily exist. These include freedom of expression, right to political organization, and free and fair elections. The existence of these rights and liberties must also be accompanied by the accountability and responsibility of all players active in the democratic process.

A country cannot aspire to be a developed country without guaranteeing these rights and ensuring these accountabilities. Indeed, developed nation status requires balanced development across a multi-dimensional set of issues, involving multiple indicators. Increases in real gross national income (GNI) per capita is, at best, only one of these indicators.

As the people of Malaysia are committed to nation building and democratic consolidation, the UN has offered to share its experience and expertise to support the government in a range of areas including two important issues in the current Malaysian discourse: electoral reform and long-term institutional building.

The UN has long established a reputation for being globally the most experienced, neutral and credible Organization on electoral reform issues. Since 1991, the UN have provided electoral assistance to 104 Member States, in addition to longer-term support to electoral institutions to build their capacities and strengthen or revise laws, systems and processes. But this offer was not taken up by the PSC for Electoral Reform.

Malaysia is still a limited democracy

Malaysia’s Vision 2020 stated that we must be fully developed in terms of national unity and social cohesion, in terms of our economy, in terms of social justice, political stability, system of government, quality of life, social and spiritual values, national pride and confidence. We are now 23 years into the Vision, with 7 more years to go. Are we close to achieving it or further away?

At this juncture, Malaysia is still a limited democracy. Over the 55 years of independence, the executive has usurped the power of both the legislature and the judiciary. People have been voicing that their biggest concerns are corruption, cronyism, the cost of living, crime, abuse of power, racism, and mismanagement of public funds. They want rule of law, independent judiciary, and justice.
People want free and fair elections. They want their human rights to be recognized, freedom of expression, freedom to assemble and freedom from arbitrary arrest and detention. They want a neutral police force to safeguard security of citizens. They want a decent education system. People want transparent & good governance and good delivery system.

The UN International Convention on Non-Racial Discrimination allows for affirmative action. However, it must be time-bound and needs-based. People have tolerated for many years and the rumblings have manifested in the Hindraf rally, Bersih rallies and the KL112 rally. But witness how have the authorities cracked down on people who free and fair elections.
Over the past five years, however, Malaysia’s political culture has evolved substantially over the past five years. An increased expectation of good governance, stable political structures, and pro-growth policies combined with pro-equity measures are yardsticks by which all political parties are now judged. This is a reflection of a maturing polity where people will vote for whoever can deliver.

Unfinished Human Rights Agenda
Clearly, there is a significant unfinished human rights agenda in Malaysia as the government itself acknowledged through its acceptance of many of the recommendations in the report which came out of the UN Human Rights Council’s Universal Periodic Review (UPR) in 2009.

We need to push ahead to raise awareness of both the government and the people that we need to adopt international human rights standards as they embody universal values of respect for human dignity and human well-being as well as for good governance and democracy.

They lay the foundation for a just, humane and progressive society, and provide a normative framework for the formulation of national and international policies and strategies for human development and towards building a Malaysian nation.
Paper presented at the Proham RTD on GE 13 & Human Rights on April 16, 2013

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