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
