CSO ROUNDTABLE DISCUSSION (RTD) ON THE NATIONAL HUMAN RIGHTS ACTION PLAN

The RTD was hosted by PROHAM on April 8, 2018 and attended by 21 people from various CSO/NGOs. The RTD was moderated by Prof Datuk Dr Denison Jayasooria with four panellist:- Datuk Kuthubul Zaman Bukhari (PROHAM), Mr Andrew Khoo (Bar Council), Mr Wan Kassim (SUHAKAM) and Mr Edmund Bon (AICHR). Mr Jerald Joseph, the current SUHAKAM Commissioner along with former SUHAKAM Commissioners, Tan Sri Asiah Abu Samah, and Muhammad Sha’ani Abdullah and PROHAM members Datuk Vaithilingam and Dr Lin Mui Kiang were also in participation.

BACKGROUND INFORMATION

At the RTD the following background information was noted:-

First, the Cabinet agreed to formulate the NHRAP on Oct 12, 2012. However it was pointed out that SUHAKAM had recommended this in 2001 and that this was a recommendation arising from the Universal Periodical Review (UPR) in 2009 and again in 2013. The formulation of the National Human Rights Action Plan (NHRAP) is mandated by the Vienna Declaration and Programme of Action (1993).

Second, the Prime Minister launched the NHRAP on March 1, 2018. Only the NHRAP plan was released without the baseline study and/or the details of the people involved. No Human Rights CSO/NGO who are actively engaged in the UPR, AICHR and/or active in human rights work and/or the UN Country Team in Malaysia were invited except SUHAKAM.

Third, only a Bahasa Malaysia version of the NHRAP was released. To date, no English translation has been released despite this being one major aspect of the UPR compliance in preparation for the November 2018 UPR.

Fourth, that a consultant was appointed by the Government namely Hazizah & Co to undertake the baseline study and prepare the NHRAP. The process took over five years; from October 2012 to March 2018. No reasons were given as to why this law firm was chosen, what criteria was used nor how much was paid for this purpose.

Fifth, the NHRAP states that it followed the guidelines of the UN Handbook on NHRAP. It also notes that the plans used the Federal Constitution, the Universal Declaration of Human Rights (UDHR) and the Cairo Declaration as its reference.

MAJOR CONCERNS

Major issues and concerns were highlighted during the discussion which is listed here:-

Guiding principles for formulation of NHRAP

First, while the NHRAP states that it used the UN Handbook on NHRAP as its guiding principle, we note that the consultants have used it selectively. We note that that there is very weak compliance to three major principles namely:-

a)      Process & Outcome. This is with regards to the guideline that “a national action plan is both an outcome and a process, each equally important” (pg13 UN Handbook)

b)      Commitment to universal human rights standards

c)      Implementing International human rights obligations

In addition the Handbook makes specific reference to the role of National Human Rights Institutions (NHRI) and civil society especially Human Rights NGOs.

In all the above five pointers, the Malaysian NHRAP as per the document released to the public on March 1, 2018, has very weak compliance to the global standard of Human Rights and to the UN Handbook.

Diversity & Expertise

Second, using the benchmark of the process, one can see major issues pertaining to the appointment of the Consultants, members of the main committee (JK Pemandu) which oversees the formulation of the NHRAP, and the five technical committees. In all these, there is no transparency as to the basis on which they were appointed nor the disclosure of any of the names other than the name of the legal firm. It is also very clear that no active human rights CSO or NGO or any human rights experts namely academics or human rights commissioners or former human rights commissioners were involved in the formulation of the NHRAP.

On the consultation process, the report does indicate that 39 ministries, 48 NGOs and 36 individual experts were consulted but there is no disclosure of any names or their background expertise. This non disclosure does not give credibility to the report.

On the appointment of the consultants and the consulting team; there is no explanation of their expertise in human rights matters. The consulting legal firm’s website gives names but no write up of their human rights expertise. None of them have been active at the local, national, regional or global human rights work in the past. This raises serious questions to the credibility of the report.

In the case of appointment of an individual to SUHAKAM there is a clear policy of indicating both diversity and expertise as stated in the SUHAKAM Act Section 5 (3) namely “from among men and women of various religious, political and racial background who have knowledge or practical experiences in human rights matters”.

In all appointments in the past as consultants or as members to committees, the Federal Government has applied the principle of diversity as well as experience and competencies. This was the case for the National Economic Consultative Council (NECC), the National Economic Action Council (NEAC), the Royal Police Commission and the National Unity Consultative Council (NUCC). However in the formulation of the NHRAP, the Federal government has narrowed the consulting team and other major committees to mono-ethnic and mono-religious group with very little expertise or experience in human rights matters. This raises major credibility concerns on the process and outcome of the NHRAP.

Universal Human rights for all

Third, on the matter of universal dimension and applicability of human rights for all, there is a brief reference to the clash between universality and cultural relativism. There seems to be a confusion as to the use of the English word ‘Universal’ which means applicable to all irrespective to religion, race, ethnicity, gender, age, disability, socio-economic status. Universal does not mean or refer to ‘universalism’. This is more of an ideological position. In the UDHR, universal is more to the application to all groups and not any ideological position.

The paragraph of major concern is the one found on page 13 of the NHRAP which reads “UDHR tidak sepatutnya dijadikan satu-satu rujukan untuk memahami hak assasi manusia di dunia. Sebaliknya, instrument-instrumen lain khususnya CDHRI juga perlu dijadikan rujukan primer oleh negara-negara Islam”.

This is problematic as the UDHR is the UN Charter description of human rights which is a global benchmark. This is the reference point for a global standard. All other regional documents including the CDHRI is judged on this global standard. The Malaysian NHRAP clearly undermines the universal and global standard. One is surprised at how the Malaysian government which has been part of UN since 1957 and has been a member of the UN Security Council and also the Human Rights Council makes such a blatant statement to indicate that UDHR will not be the reference point. This is totally unacceptable from a human rights stand point.

One area on this matter which is totally omitted by the NHRAP is the reference to the SUHAKAM Act which clearly makes a reference to the UDHR. The Act states in Section 4 (4) relating to function and purpose of the Commission “for the purpose of this Act, regard shall be had to the UDHR 1948 to the extent that it is not inconsistent with the Federal Constitution”. However how was this missed in the NHRAP when another part of the SUHAKAM Act was specifically referred to in the report namely “Human Rights refer to fundamental liberties as enshrined in Part II of the Federal Constitution” at page 10 of the report.

In the NHRAP there are a number of factual errors on page 11. This could be cited as another example of downplaying the UDHR. Reference is made to the UN in 1948 when the General assembly adopted the UDHR. The NHRAP indicated that only 48 of the 88 countries voted in favour. However the real figures are in 1948 there were only 58 members. 48 voted in favour of UDHR including 10 Muslim majority countries. 8 countries abstained. 7 of these were from the Soviet Union. The other was Saudi Arabia. Two other countries were absent.

Furthermore on page 11 of the NHRAP, reference is made to the UDHR and in particular, Article 9, 13, 16, 20, 21, 23, 25 and 26. However, absent is the reference to Article 1 & 2 of the UDHR which is universality of equality for all namely in Article 1 that “all human being are born free and equal in dignity and rights” and in Article 2 “everyone is entitled to all the rights and freedoms”. This is the universal aspect of human rights.

It is also important to note that there is no comparative table to show how UDHR differs from the Cairo Declaration or how similar they are. Nevertheless, a majority of Muslim nations and Muslim majority States have ratified many of the UN conventions. There is no discussion on the compliance of other Islamic States such as Indonesia to universal standards. However what the NHRAP does state in reference to the CDHRI is its compliance and adherence to “Syariah Islam” and also to “ajaran Islam yang bersumberkan al-Quran dan al-Sunnah”(NHRAP pg 12).

In this context we must state that based on the Federal Constitution this is an acceptable reference but it is only limited to the Muslim community and hence not relevant or applicable to Malaysians of Buddhist, Hindu, Sikh and Christian believes including the natives of Sabah and Sarawak who are Christians. 

Another aspect in this context is the frequent reference to the term “acuan Malaysia” or Malaysian mould or model. A paragraph on page 13 which describes this: -

“Dalam konteks negaara Malaysia, isu-isu hak asasi manusia khususnya yang berkaitan dengan peranan agama, etika dan budaya perlu ditanggapi secara selari dengan tuntutan agama Islam dan perlembagaan negara. Jika tidak, ia akan menghakis kehidupan beragama dan mengundang keruntuhan moral dan akhlak dalam kalangan masyarakat”

This paragraph contradicts not just the UDHR but also the Federal Constitution. It blatantly ignores the diverse ethics, cultures, and religious aspects of the Malaysian community and only makes reference to Islam. The conclusion as to noncompliance is illogical, and is unislamic.

We can have some features of the Malaysian experience which enriches the global human rights standard but ours cannot be one which deprives or denies human rights of others using a cultural or religious indicator or value. The UDHR, the various declarations and conventions are set on global standards which is applicable to all communities (ethnic, religious, socio-economic etc). If there are specific reservations then a country could indicate that but not as proposed in the NHRAP which blatantly narrows the human rights standard. In fact, the statement in the NHRAP could be seen as a violation of human rights at the global level.

Concern is raised with the numerous references to the Syariah courts instead of the Civil Courts and human rights concerns in the NHRAP. While there is agreement to the specific role of the Syariah courts as per the Federal Constitution, there seems to be an expansion of the Syariah court’s role in the action plan, which is ultra vires the Federal Constitution. 

For example on page 33 of the NHRAP on the matter of strengthening ethnic and religious concerns, an issue identified and in the section on objectives to be achieved, it is proposed that all people receive justice via the Syariah courts. This is currently the major controversy between a non-Muslim and a Muslim, in the case of death or in the case of child custody. However on page 61 which is the specific long term action (5 to 10 years) reference is now made to a special committee or mechanism to monitor under the Department of National Unity & Integration and also under the Prime Minister’s department. It is sad to note that the formulation of the NHRAP has pushed the most urgent inter-religious concern into a long term action. Furthermore it does not seem to make any reference to major recommendations which the Cabinet had reviewed on this matter nor any reference to the Constitutional position on the role of the Civil court which is the Constitutional court to address this matter.

International Human Rights Obligations

Fourth, is the commitment to universal human rights standards which is a key guideline in the UN Handbook. The NHRAP does not explain the UN system of declarations and conventions. Conventions and Treaties, once ratified, is a legally binding commitment. In the case of Malaysia’s ratification of CEDAW, CRC and CRPD, the NHRAP does not adequately discuss the challenges Malaysia is facing in the reporting process, the delays and the capacity issues faced by the agencies in meeting international compliance and standards. The recent CEDAW review at Geneva reveals how unprepared the Malaysian team was during the Q & A session.

Although the drafting of the NHRAP took about five years, there is no indication in the report over the matters discussed. Neither are reasons provided as to why Malaysia needs another five to ten years to consider the ratification of ICESCR, ICCPR, ICERD and CAT. (NHRAP pg 135 and 136)

On ICERD, the Department of National Unity and Integration had already commissioned a study and this matter was also discussed at the NUCC discussions. Malaysia is among only 14 countries which has not ratified this convention on the elimination of racial discrimination. 179 countries with a majority of OIC and ASEAN countries have ratified ICERD. Even Singapore has done so. Why is Malaysia unable to do so when we claim the ‘1Malaysia’ slogan and that ‘we are truly Asia’?

All these International conventions have been listed in the long term discussion without any clear description of why we are unable to ratify them after a 5 year NHRAP study and review. Why have we failed to ratify the Convention on Economic, Social and Cultural Rights (ICESCR)?. Based on the Eleventh Malaysian Plan (2016 – 2020) our commitment to inclusive development and our acceptance of SDGs in New York in September 2015 with the commitment to ensure that “no one is left behind”, is completely at odds with our clear reluctance to ratify the ICESCR.

On the rights of indigenous people, there is no reference to the Declaration of Rights of Indigenous People (UNDRIP) which Malaysia accepted. Malaysia was among 143 countries which voted in favour on September 13, 2007. This is a landmark declaration and the NHRAP should use this as the human rights framework to address the human rights violation faced by the Orang Asli community as well as among the natives of Sabah and Sarawak.

National Human Rights Institution (NHRI)

Fifth, in the UN Handbook there is reference made to NHRI as public defenders or public protectors. While it was SUHAKAM who made the first recommendation in 2001 for a NHRAP and subsequently, it has made many recommendations to the Consultants and the various committee, however there is no mention of SUHAKAM nor its role in the NHRAP- not even in the future work of human rights promotion and protection. In fact the Prime Minister’s announcement of a high level committee set up by the government with no legal power is a very weak human rights oversight body or even one to monitor the implementation of the NHRAP.

The NHRAP has down played the role of SUHAKAM by not devoting a major section to promoting human rights as provided for in the SUHAKAM Act. Furthermore, the NHRAP consultants have not used the SUHAKAM’s enquiry reports and recommendations as a major benchmark for the human rights action. The matter pertaining to the lack of compliance to the human rights violations and neglect by different agencies has not been analysed or indicated in the NHRAP. There are numerous enquiry reports on human rights violations by Police on brutality, death in custody as well as on violations pertaining to freedom of assembly. There are reports on land related matters and violations by State government and private companies. These could have been the basis of much of the recommendations for further action and compliance by the relevant agencies.

There is no discussion on the strengthening of SUHAKAM’s powers and roles especially getting the parliament to debate and discuss the SUHAKAM annual report and other enquiry findings. There is no reference to the establishment of a Parliamentary Select Committee to review agency compliance to the recommendations for improvement of the human rights culture, standards, compliance and punishment of the violators from within the government civil service. It is the holding of the institutions of the government accountable to human rights standards and practice which is most critical. The NHRAP missed this point that one of the major violators of human rights are some sections of the administration especially the enforcement side of government.

Civil Society Engagement

Sixth, there is a specific reference in the UN NHRAP Handbook to civil society and Human Rights NGOs and their role in “contemporary public policy-making” including the “development and implementation of a national action plan”. As mentioned earlier there was no CSO representative in any of the major committees established.

Malaysia was among 117 countries which adopted the Declaration on Human Rights Defenders on November 25, 2015. There is no reference to this in the NHRAP. This is a very significant declaration which articulates the roles and duties, not just of human rights defenders, but also the State towards human rights defenders. Malaysia voted in favour and therefore the NHRAP must chart out how this will be operational in the Malaysian context.

CSOs and Human Rights NGOs representative should have been invited to be part of the consulting team, members of the main oversight committee and members of the technical committees. In the past, on all major policies, this has been done. One good example is in the current SDGs; both in the preparation of the Voluntary National Review and the formulation of the SDG National Roadmap where CSOs are partners in the development process led by the Economic Planning Unit.

However, in the NHRAP process, the CSOs were merely invited to provide input and not play a major role in the formulation of the NHRAP. This approach falls short as CSOs and Human Rights NGOs were not regarded as partners in the development of the NHRAP.  

RECOMMENDATIONS

It was strongly felt by participants at the CSO discussion held on April 8, 2018 that because the NHRAP was not formulated on the foundations of the UDHR and UN international standards, it is proposed that the Federal Government withdraws the NHRAP. It was also noted by some of the participants that we were in such an unacceptable situation because the consulting team and people involved were not ones with human rights expertise or experience.

It is therefore proposed that the Federal Government establishes a new consultative process with all stakeholders - government agencies, civil society, academia and private sector to reformulate the NHRAP consistent with the UN Handbook on NHRAP. SUHAKAM the legally constituted body should not only lead this process but also serve as its secretariat. Persons and groups appointed to coordinate this process must be men and women from diverse religious and ethnic communities with expertise and experience in human rights work. This must be done before the November 2018 UPR review. It is also recommended that any further work on the NHRAP must be released in both Bahasa Malaysia and the English language as this document is also to be read by the global community.

Report written by Prof Datuk Dr Denison Jayasooria.

EXCO Member, PROHAM & Principal Research Fellow, Institute of Ethnic Studies (KITA), UKM and a former Human Rights Commissioner (2006-2010)

April 17, 2018