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Thursday, 14 November 2013


Denison, Tan Sri Simon, Andrew & Wan Kassim
(Thoughts shared at the Proham discussion on the Post UPR on 14th November, 2013)

Diplomatic Hypocrisy
A few years ago, I had the opportunity to ask a foreign diplomat what was the main role of a diplomat. He jokingly told me that a ‘diplomat is an honest person telling lies about his or her country.’ Joke or otherwise there is some element of truth in the statement. In international relations, sometimes diplomatic hypocrisy is unavoidable to promote and maintain cordial relations between governments and countries for the sake of perceived or real mutual benefits.

President Obama was reported to have said on 11th October, 2013 that ‘Malaysia is a model of diversity, tolerance and progress.’ Either Obama was grossly misinformed which is unlikely or just playing politics. When the US Secretary of State was in Malaysia he echoed similar sentiments. So were leaders of some western countries notably the UK and Australia.

The UN is a gathering place of diplomats representing all the 193 member-states. International matters and issues are traded and exchanged including those associated with human rights. In the process, very often the principles and spirit of human rights are given less attention. Praises are heaped upon Malaysia and its leadership in preference for political, economic, business, commercial and other considerations at the expense of realistic recognition of the sad state of human rights situation in the country.  The promotion and protection of human rights is pushed to the back seat.

Another constraining factor is the inadequate or lack of effective enforcement mechanism. The Universal Declaration of Human Rights, for example, is just a list of principles and there is very little, if any, the UN can do if countries choose to violate or ignore them. Winston Churchill was quoted to have said that ‘the UN was not set up to get us into heaven, but only to save us from hell.’

The UPR process

The UPR process provides a unique forum for the rest of the world to examine, criticise and suggest improvement to the human rights situation in the country but the government still has the option to do as it pleases in the name of national interests which will prevail over its international human rights obligations in the event that the two clash. National interests are the prerogative of the government to identify and define. One can only hope that the weight of world opinion could help to prick the conscience of the government if it has any.

At the international stage such as the UN, the government has the advantage because it has the financial resources, facilities, strength and capacity to undertake marketing, diplomatic and public relations exercise which non-state actors and stakeholders could only dream of.

During the PROHAM discussion on the UPR and human rights on 22nd October, 2013 just 2 days before Malaysia was to appear for the 2nd time for the UPR process on 24th October, 2013, I argued that the last UPR process on 11th February, 2009 involving Malaysia made very little, if any, impact in the promotion and protection of human rights in the country. In many ways, the human rights situation in the country has deteriorated.

The second UPR for Malaysia took place in Geneva on 24th October, 2013. The government’s presentation as expected focussed on Malaysia’s commitment to pursue a national development agenda. It gave itself marks on certain marginal and incremental progress in the field of economic and social rights especially the initiatives on housing, the eradication of poverty and access to educational, medical and health facilities.

The 13th general elections was mentioned and portrayed in good light without mentioning public unhappiness over alleged electoral frauds, excessive gerrymandering and very uneven playing field. There was no mention of the fact that the government which was formed represents the minority. What was portrayed did not reflect the true human rights situation.

Deterioration of Human Rights in Malaysia

Admittedly Malaysia had made progress especially at the national and aggregate level. However the picture is different if the assessment is based on a disaggregated basis. For example, in Asia Malaysia is believed to come second to Papua New Guinea in terms of income disparity, Papua New Guinea being the worst.

According to the World Bank and UNDP 2010 report Sabah is the poorest state despite its status as producer of oil and gas. Poverty rate exceeds 30% whilst poverty rate for children exceeds 42%. More than 50% of the total number of poor people in the country live in Sabah. About 39% of wealth in Malaysia is in the hands of 10% of rich people. In short, the rich are filthy rich and the poor are really poor and destitute.

Sarawak sent JC Fong, the former State Attorney-General and now state legal consultant to Geneva to represent Sarawak at the last UPR hearing. He portrayed a caring and responsible state government. He painted a very rosy picture of the life of displaced natives and that their standard of living had improved and were handsomely compensated.

According to Baru Bian he misled the UPR process. I too have a different impression of things based on my visits to rural Sarawak and dialogues with the natives including the Penans who were affected by the construction of dams. If what JC Fong claims are true why are the natives filing cases against the state government in court? Why are they making blockades in protest? Why are they holding demonstrations? These are not the behaviour of happy and satisfied people.

It should be remembered that human rights are indivisible. Civil and political rights cannot be suppressed in return for more economic, social and cultural rights. It is clear that in Malaysia political and civil rights are lagging far behind.

Specific Reference on the UPR Comments & Recommendations

104 countries made comments and statements using words such as ‘noted, commented, highlighted, concerned, welcome’ and so on. The Malaysian   response was generally defensive of the government position claiming that what was done was in line with the laws of the country and in the best interest of the government, the people and the country.

232 specific recommendations were directed at Malaysia which will have to be responded on or before the 25th session of the Human Rights Council in March 2014.

The recommendations which should be given priority include the following:

·         Signing and ratification of all the core human rights conventions still not ratified by Malaysia.

·         Repeal of all laws which allow arrest without trial.

·         Implementation of an Independent Police Complaints and Misconduct Commission.

·         Formulation and implementation of a National Human Rights Action Plan.

·         Review of legislative framework to ensure religious freedom for all Malaysians including Muslims.

·         Repeal of the Printing Presses and Publication Act.

·         Ensure that laws on indigenous peoples and their implementation comply with the Declaration on the Rights of Indigenous Peoples.

·         The establishment of an independent body to investigate disputes over land, territories and resources.

·         To issue a standing invitation to all Special Procedures and UN Special Rapporteur and accept their requests when they seek to visit Malaysia.

Future Human Rights Agenda in Malaysia (2014 to 2018)

Post UPR has just begun. Will we see the desired improvement in the human rights situation in the country during the period between the 2nd UPR process and the 3rd due in 2018? Only time will tell. In the meantime the ball is at the feet of the government. People have high expectation that the government will be serious and walk the talk.

I am delighted to note that the government delegation to Geneva, COMANGO, JOAS and the Bar Council Human Rights Committee agree that there is still a lot more to be done in the promotion and protection of human rights in the country. This being the case, it would be a good idea for these groups to initiate the establishment of a permanent consultative body to identify, amongst others, outstanding matters in terms of priority and to continuously monitor the follow-up actions to be taken by the government following the adoption of the outcome report on Malaysia. Such body could be headed and coordinated by Suhakam.

 At the same time more awareness programme associated with the UPR process could be organized. For such effort to succeed it must get the support of all levels of society especially civil society organizations. Confrontational approach should be avoided. Constructive views and criticisms should be welcomed and appreciated. Any improvement in the promotion and protection of human rights is good for the government, the country and its citizens.

 I sincerely hope that history will not repeat itself in the case of the outcome of the 2nd UPR process on 24th October, 2013. To help to prevent this from happening, everyone must play his or her role especially civil society groups, human rights activists, human rights institution, and so on by continuously reminding the government of its obligations through the UPR process. Everyone should take maximum advantage of this UN mechanism.

Finally, the future of human rights in this country depends on what the government does today and plan for the future. If the above priorities could be acted on between now and the next UPR hearing human rights would be assured of a bright future. What is certain at present is that awareness of human rights is far greater than before due to the higher standard of literacy and more and better access to the internet. As a result, expectation is rising and it is becoming difficult, if not impossible, for the government to hide the truth.

Nov 14, 2013

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