According to the UN
Secretary-General, Mr. Ban Ki-moon the UPR ‘has great potential to protect and
promote human rights in the darkest corners of the world.’ However, past as well as current events in
Malaysia do not indicate that the UPR has made any positive impact in the
promotion and protection of human rights in the country. In many ways, the
state of human rights has deteriorated since the first UPR process involving
Malaysia.
The UPR was established by
the UN General Assembly on 15th March, 2006. Its main objective is the
improvement of the human rights situation in all the 193 member-states of the
UN. It involves assessing states’ human rights records and addressing human
rights violations wherever they occur.
Malaysia
& UPR (2009 & 2013)
Malaysia had its first taste
of UPR process on 11 February, 2009. In that exercise 103 recommendations were
directed at Malaysia. Malaysia accepted 62, noted 22 and the remaining 19
recommendations were clarified during the adoption of Malaysia’s UPR outcome
report at the 11th session of the Human Rights Council in June 2009. According
to the Coalition of Malaysian NGOs in the UPR Process (COMANGO) only about 23%
of the recommendations were implemented. There is nothing to be proud of in the
statistics.
The government portrayal of
the state of human rights situation in the country hides the real situation. At
best it is cosmetic and involves a lot of public relations exercise to try and
impress other countries which are associated with the UPR process on Malaysia.
For instance, the government submission is silent on the Bersih rally and the
public inquiry on it by Suhakam.
Prevention
of Crime Act 1959 (PCA)
The latest nail on the
coffin of human rights in Malaysia was in the form of the amendments to the
Prevention of Crime Act 1959 (PCA) which have been bulldozed and passed by
Parliament just after mid night on 2nd October, 2013.
For the record PROHAM has
issued press statements against the amendments. It has also organized a
discussion on the subject on 30th September, 2013. During the discussion,
PROHAM member of the executive committee Datuk Kuthubul Zaman Bukhari presented
a very comprehensive and convincing analysis why the amendments should be
opposed.
Sadly the government of the
day which represents the minority saw it fit to push through the highly
undemocratic amendments. It is rather odd that it came just before Malaysia is
to appear for the second time for the UPR process in 2 days’ time on 24th
October, 2013 in Geneva. In the meantime I read in the news that the Minister
of Home Affairs has claimed ‘ownership’ of the amendments. He is also reported
to have advocated a ‘shoot first talk later’ policy with the claim that more
often than not Malays are the victims. It cannot be more racist and human
rights unfriendly than this. This is indeed a sad and black day for human
rights in this country.
The ISA has come back with a
vengeance. It is ISA 2. Arrest without trial represents one of the worse forms
of human rights violations. It is a common feature in totalitarian states. If
the government has enough evidence to arrest a person it should have enough
materials to charge that person. Although government leaders keep saying the
amendments will not be abused and used against political opponents, people are
not convinced judging by what happened in the past during the years before the
ISA and EO were repealed.
Arrest without trial is
against the spirit and principles of human rights. Article 9 of the Universal
Declaration of Human Rights (UDHR) provides that ‘no one shall be subjected to
arbitrary arrest, detention or exile.’ Under Article 11 ‘everyone charged with
a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees
necessary for his defence.’
Detention
without trial
Based on available
information, 27 people were detained without trial in 2011. The number was 25
in 2010. There were 25 cases of custodial deaths in 2011 compared to 18 in
2010. Overcrowding in prisons and places of detention continue to persist. In
2010, the country’s 31 prisons held about 38,387 prisoners designed to hold about
32,600. By 2011 RELA membership reached about 2.7 million. There is great
concern that they are not suitably trained, qualified and experienced to
perform their duties professionally often leading to human rights violations of
the people they are supposed to protect.
Religious
Freedom
In the same breath the Prime
Minister is trying to propagate to the rest of the world his Global Movement of
Moderates. Malaysia is being portrayed internationally as a country in which
‘peace and public order are safeguarded in line with the supremacy of the
constitution, the rule of law and respect for basic human rights and individual
rights.’ Can it get more hypocritical than this?
The latest Court of Appeal
unanimous decision to overrule KL High Court Judge Lau Bee Lan’s 2009 decision
that the Home Ministry’s ban on the term ‘Allah’ by the Catholic weekly ‘The Herald’ was
unlawful and unconstitutional as it violated Article 11 of the federal
constitution is yet another serious blow to religious freedom in this country. All
the 3 Judges were Malays and Muslims. Their decisions were not about the law
but politics and ‘ketuanan Melayu.’
In the interest of justice,
the judges should have been a Hindu, a Buddhist and a Sikh who would deliberate
on the issue judiciously and from the constitutional and legal point of view.
If there is any race which can claim ownership of the word ‘Allah’ it should be
the Arabs. It is their word for God irrespective of whether they are Muslims or
non-Muslims. To the best of my knowledge it is not a Malay word. Is there
anywhere in the holy Koran to say that the word ‘Allah’ can only be used by
Malay Muslims in Malaysia? If there is then I rest my case.
Because of Article 121(1A)
of the federal constitution, non-Muslims in the country continue to be deprived
of legal remedy. Reference in now being made to Malaysia as an Islamic state
although it is not provided for in the constitution. I have known of cases in
Sabah in which people are labelled as Muslims simply by having ‘bin’ or ‘binti’
in their names or merely having a Muslim sounding name.
Human
Rights Commission (SUHAKAM)
Suhakam became operational
on 24 April, 2000. It has prepared 12 annual reports but none has ever been
debated in Parliament. One of its 4 main functions is ‘to advise and assist the
government in formulating legislation and administrative directives and
procedures.’ How is Suhakam expected to perform such function if the government
does not bother to give Suhakam the draft bills?
As early as in 2001 Suhakam recommended to the
government to develop and formulate a national human rights action plan for the
country. Suhakam provided the conceptual design. Such a plan will help to improve
and strengthen the promotion and protection of human rights by placing human
rights in the proper context of public policy. To date there is no sign of it
becoming a reality.
Year in year out Suhakam has been pleading for
the government to accede to and ratify the 9 core human rights treaties. To
date the number ratified by Malaysia remains at 3.
Democratic
space
During the last 3 or 4 years
people are increasingly becoming more aware of their political and civil
rights. They are more assertive than ever before. Bersih 3 rally attracted a
multi-racial crowd of about 250,000 people on 28th April, 2012. It is merely
promoting a clean, free and fair election and yet the government saw it fit to
declare it illegal. It is promoting good universal democratic values. Why
is the government having aversion
towards it if it is not condoning dirty, unfair and elections which are not
free?
Land
Rights & Indigenous People
In view of the many
continuous complaints related to land matters received by Suhakam, it undertook
a national land inquiry for the first time from December 2010 to June 2012. It
has finalized its report containing several recommendations and submitted to
the government. Instead of favourably considering the implementation of the
recommendations the government instead formed a task force to look into the
report rendering the inquiry an exercise in futility.
Proham Recommendations
The ultimate objective of
creating a culture of respect for human rights in this country remains a dream.
However giving up is not the solution. It is not an option. The promotion and
protection of human rights is a continuous process. It is a moving target and
could change direction when least expected. It is an unending journey. What
cannot be achieved today could be achieved tomorrow. Where the present
generation failed, the next generation could succeed.
In the meantime PROHAM
appeals to the government to delay the enforcement of the amendments to the PCA
whilst holding more dialogues and consultations with civil society
organizations and the public at large.
PROHAM recognizes the
concern on crime. However, to eradicate crime by way of amendments to the PCA
is not acceptable. PROHAM has repeatedly called for meaningful reform of
enforcement agencies, better and professional policing and the allocation of
more resources as well as raising the standard of criminal investigation to
fight and eradicate crime. It has also called upon the government to implement
without delay the Independent Police Complaints and Misconduct Commission. A
police force which is truly professional should welcome such Commission.
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Thoughts shared by Tan Sri Simon Sipaun (Proham Chairman) at the Proham Discussion on the UNIVERSAL PERIODIC REVIEW (UPR) AND MALAYSIA’S HUMAN RIGHTS STATUS held on 22nd October, 2013.
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