The Malaysian Government underwent the second Universal Periodic Review of its human rights record at the United Nations on Oct 24. Have we done better or is there much more to do?
WHENEVER the international community is looking for a poster child for a “moderate” Muslim country, they like to point to Malaysia.
The number of times Malaysia has been elected to the United Nations Human Rights Council (HRC) is testament to this.
Which is all very well except the report card on human rights we are getting under the UN’s Universal Periodic Review (UPR) doesn’t paint such a pretty picture of us.
The UPR process involves member states having to field questions from their peers on reasons for not keeping their pledges, not just to the HRC, but to their citizens as well.
That means these states cannot obfuscate anymore the situation in their country because the independent reports filed by stakeholders and national human rights institutions (NHRIs) like our Suhakam can contradict them.
At Malaysia’s 2nd UPR in Geneva on Oct 24, the Government received 232 recommendations from 104 member states – which says a lot about Malaysia’s human rights record. (See http://www.upr-info.org/IMG/pdf/a_hrc_wg.6_17_l.8_malaysia.pdf)
The top five clusters were: accession of international human rights treaties (28 recommendations); review death penalty, (20); healthcare (17); anti-trafficking in persons (14); and right to education (13).
In an interview, Suhakam chairman Tan Sri Hasmy Agam noted that although some members commended the Government’s repeal of the Internal Security Act and Emergency Ordinances, only a few had expressed concern over the recent amendments to the Prevention of Crime Act which were “retrogressive and inconsistent with human rights principles.”
And while Suhakam concurred with the positive comments, he felt that critically constructive comments and recommendations “would have served as valid and useful reminders to the Malaysian Government to redouble its efforts to promote and protect human rights here.”
He also expressed disappointment in the absence of recommendations on business and human rights: “This demonstrates the lack of recognition by state actors on the role and obligation of business entities in promoting and protecting human rights.”
By March 2014, the Government must indicate which of the 232 recommendations it will support.
Should Malaysians trust the Government’s pledges?
As Amnesty International and Suaram have pointed out, the Government pledged to consider ratification of these human rights treaties – International Covenant on Civil and Political Rights (ICCPR), Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (CAT), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the International Covenant on Economic Social and Cultural Rights (ICESCR) – but had not done so.
Is there any hope for the Rome Statute, the Refugee Convention, the International Convention on Protection of Migrant Workers and their Families or the convention of the rights of indigenous and tribal people, instruments which the Government has not agreed to?
At the 3rd UPR in 2018, Malaysia would be on the threshold of becoming a developed nation, and it would be tragic if we have still only ratified three conventions – Elimination of Discrimination against Women, Rights of the Child, and Rights of Persons with Disabilities.
“When the Government makes a promise, it must be one it can fulfil but it’s taken a long time,” said Hasmy.
He said an Inter-Agency Standing Committee (IASC) on human rights was looking at how far the Government can go in ratifying these treaties.
“The Ministry of Foreign Affairs is coordinating. I hope they will pick up the pace faster.”
The Government said in its statement at the UPR that IASC was expected to submit its recommendations concerning Malaysia’s accession to ICESCR by year-end.
While giving the Government the benefit of the doubt, Hasmy said Suhakam would “nudge them harder this second round,” adding that it wouldn’t reflect too well on Malaysia if the Government made promises it could not keep.
“But as far as I am concerned, we urge the Government to look at all the recommendations and make pledges to do its best to fulfil the recommendations by its peers, especially the ones that are doable.”
Which are the doable ones?
Hasmy said the six core human rights instruments should be implemented, if not all together, then stage by stage, one by one.
“We have targeted to be a developed country in 2020, by which time we will be judged by higher standards.
“Not all developed countries have ratified all the conventions, the United States being one glaring example, but some of these things are in their Constitution.
“There is a mechanism internally for them to be monitored by their people. In our case, some are there but most are not.”
“If they say ‘well, it’s very difficult, we want to put our house in order first before we do it’, for heaven’s sake put your house in order.”
Even in Asean, Hasmy said the Philippines and Indonesia were in the lead having ratified eight treaties.
“Cambodia, Thailand, Laos and Timor Leste, which has observer status in Asean, have ratified seven each. Vietnam has ratified five.
“We are among the last with three ratifications! How proud can we be?”
Hasmy said ratification and accession were his team’s priority, adding that they would also push for the old pledges and the new ones the Government would make in 2014 so that by 2020, there would be none outstanding.
“Whether we will be able to deliver remains to be seen because our role is advisory.”
He is hopeful of talking with the Government before Malaysia makes a statement of commitments, which they feel they would be in a position to fulfil.
Five recommendations called for strengthening Suhakam. What does Suhakam want?
Hasmy said the team led by Tan Sri Abu Talib Othman had recommended Suhakam have more powers but nothing happened.
He said former de facto Law Minister Datuk Seri Nazri Aziz had been positive about two of the recommendations:
>ALLOW Suhakam to make unscheduled visits like other NHRIs to detention centres and prisons, unlike now where they have to alert the authorities first; and
>SET up a parliamentary committee on human rights, short of having a full parliamentary debate on its annual and other reports.
Hasmy said they would be meeting Nazri’s successor – Nancy Shukri – to discuss giving Suhakam the right to appear in court as amicus curiae or to hold watching brief in cases involving human rights infringements.
“Some NHRIs can bring cases to court. That could be our next stage.”
“It may take some time but as we progress to 2020 and beyond, you (Government) have to improve your record otherwise you have no credibility.”
The second highest cluster of recommendations called for a review of the death penalty, including a moratorium with a view to abolishing the death penalty.
The Government announced various reviews of the death penalty in 2009. Can the 2013 UPR recommendations bring a result?
Referring to the briefing by Malaysian Bar president Christopher Leong to parliamentarians on Nov 14 on a recent survey on the death penalty here, Hasmy said he hoped so.
“The Death Penalty Project survey shows Malaysian are not in favour of mandatory death sentences and prefer giving judges the discretion.
“The Government said it would act if the public thinks it is no longer relevant. The survey proves this.”
Hopefully, Nancy who moderated the session in Parliament will get things moving.
In July 2012, the Prime Minister pledged to repeal the Sedition Act ahead of the general election. GE13 has come and gone but the Sedition Act remains. This was noted by Australia, the Czech Republic, the United States and Britain at the UPR. What can Suhakam do?
“It’s a commitment on the part of the leadership, we will keep reminding him of it,” said Hasmy.
He said there was talk of a National Harmony Act to replace the Sedition Act but noted there were many stakeholders to consult.
“Our laws are security oriented not human rights oriented. Many countries have shifted from security to human rights. We are pushing for the same.
“Any new bill or legislation must be compatible with international norms. Otherwise it’s like putting old wine in new bottles,” he added.
Are the UPR recommendations a reflection of what Malaysia needs to do or what member states want to impose?
“Some are repeated issues, they’re reminding Malaysia to do what it has not done,” said Hasmy.
“It’s a combination of factors. They want us to improve, perform better.
“Of course, the West has their own perspective of countries they want to be like them.
“That’s why there are some of our people who say it is a Western-driven thing. But this is not true.”
Hasmy said the Universal Declaration of Human Rights 1948 comprised universal principles which Malaysia, as a member of the UN, was obliged to fulfil.
“It can’t be that it is meant for certain countries and not us. There’s a misconception on the universal nature of the principles of human rights,” he said, adding that Suhakam was beginning to engage with different groups on this.
“There’s a misunderstanding even among some people from my community about the UDHR’s universal principles. They instead subscribe to the 1990 Cairo Declaration by the OIC (Organisation of the Islamic Conference).
At a meeting with the International Institute of Advanced Islamic Studies over the two declarations, Hasmy said he was informed there was only a small percentage of differences, which could be resolved in an appropriate manner.
“Islamic scholars agreed with me when I made the point that we shouldn’t be defensive about human rights because in the golden age of Islam, when the West was mostly in the Dark Ages, we were in the vanguard of promoting welfare of mankind which includes human rights.
“There’s no reason why, just because the West is promoting it because of their own traumas of the Second World War, that we should think this is a Western-imposed agenda. I don’t agree.
“For instance slavery, is the fight against it a Western-driven thing?
“Are you going to say that we from the East promote slavery?
“No, it’s universal; the UDHR does not evoke the name of God, it is a secular statement.
“The principles are not underlined by religious, moral principles of any religion but they are mostly the same.”
Hasmy called for greater interfaith dialogue.
“We should move beyond tolerance in Malaysia to understanding and respecting differences, that is, differences of behaviour, lifestyles, religious principles... so we understand where we are coming from and why people are sensitive about certain things.”
Urging the Government to finalise the National Human Rights Action Plan as soon as possible, he expressed hope the Government’s statement of pledges in March would be ambitious but doable.
“Statements like ‘steps have been taken or are being taken’ don’t go down too well,” he added.
Malaysians will have to wait and see whether the Government cares about its reputation in the international sand-box