BEING HELD ACCOUNT THROUGH A GLOBAL REVIEW PROCESS- HUMAN RIGHTS & MALAYSIAN SOCIETY

Denison together with Tan Sri Simon and Datuk Saifuddin

By Datuk Dr Denison Jayasooria (Proham Secretary General)

There is concern in the way some public officials and NGOs have been articulating the place of human rights in Malaysian society. Some indicate that the Universal Declaration of Human Rights is an optional framework or not really universal in character, others have referred to this as a western notion and some have even given the impression that this is anti or un-Islamic in orientation.

There is very little understanding on human rights among these individuals and groups, as their popular discourse seems to be half-truths which is undermining the very heart and core of human rights in Malaysian society.

Proham is very concerned when such viewed are shared by Ministers in the current Federal government or among Members of Parliament from among the back benchers of the BN, and by federal civil servants. There is definitely a failure to understand the place of human rights in the global and national life.

As a run up to the UPR Malaysia review process, Proham hosted an evening discussion on Oct 22, 2013 to review the status of human right in Malaysia. A small team of about 20 people participated in a very fruitful discussion. In this discussion a number of key themes and conclusions we identified.

UPR Process & Human Rights compliance

On the UPR process there seems to be some limitations in understanding by certain groups. The UN introduced a peer group review of UN member countries. The Government, the UN country team and civil society have opportunities to make submissions. These have been documented and make available on the UN website.

The attacks by certain quarters on the Coalition of Malaysian NGOs for the Universal Periodic Review process (Comango) who are exercising their constitutional rights and who are consistent with the UN guidelines is unacceptable and a violation of human rights. It also revels the ignorance of the UN system as well as UPR process

The Malaysian government’s  2013 report to the UN indicates Malaysia’s commitment “to upholding respect for human rights”. Malaysia accepted 62 of the 103 recommendations made in 2009 and has made a global pledge to fulfil these. Therefore the UPR review on Oct 24, 2013 will provide Malaysia an opportunity to share what it has done and not done for human rights.

It is important for Federal public officials to take cognisance of Malaysia’s pledges and commitment and evaluate in an objective manner our track record nothing areas where we have done well but also recognise that in many areas we have not met global standards. This is a very transparent process and the human rights audit will reveal both our strengthens and weakness

Therefore it is important to reiterate that Prime Minister Najib started his office as PM with a very strong commitment for human rights. He took specific measures to provide legislative changes to laws so as to make it more compliant with human rights. Malaysia is currently a member of the Human Rights Council and has a nation we have made financial contributions to the work of the UN.

In the first UPR review in 2009, Malaysia made some clear global commitments towards human rights and therefore the articulation by certain individuals and groups is putting Malaysia in very bad light and also undermining the initiatives of the Prime Minister when he took office as PM.

It is important to remind Malaysian Muslims that Malaysia co-signed the Cairo Islamic human rights declaration formulated by OIC member countries. There seems to be very little awareness of this especially when there are so many comparable aspects between UDHR with the Cairo declaration

National Human Rights Action Plan

In his presentation Tan Sri Simon Sipaun, the Proham Chairman noted that as far back as 2001, Suhakam had recommended to the Malaysian government to undertake a National Human Rights Action Plan. We are disappointed that in 2013 this has not been done even after Malaysia made a commitment in 2009 at the UN. The government report indicates that it was only in 2012 that the Legal Affairs Division of the Prime Minister’s Department has established a steering committee to coordinate the development of the plan.

It has taken over a decade for the Federal government to take up the recommendation and active of Suhakam. Such slowness in implementation contradicts PM Najib’s effective delivery.

Ratification of UN Human rights conventions

Ratification of core human right conventions is another major area of concern. Malaysia as a nation is embarrassingly behind in our ratification track record. In 2009 Malaysia indicated that it would seriously consider the Convention on economic, social and cultural rights and the convention on the elimination of racial discrimination. However Malaysia has been very slow in undertaking this.

In comparison with Asean countries and OIC countries we are on the bottom of the pile in comparison of ratification of the 9 core human right conventions. There is an urgent need for Malaysia to adequately create awareness and understanding in this area.

Detention without trial

The government report documents “the more drastic measures taken by the Government that underscores its serious efforts and commitment to protect human rights in Malaysia is the repeal of the most criticised ISA… which is a preventive law”

However the most recent introduction of the Prevention of Crime Act (2013) with the provision for detention without trial is seen as a regressive step especially as the safeguards of judicial review and access to legal counsel is tremendously restricted.

This act by the Najib administration and the justification used by both the Ministry of Home Affairs and the Police is indicative of how low the agenda of human rights compliance is in apprehending suspected criminals and underworld gangs.

Proham has taken the position that the government must be tough on crime but also address the root causes of crime. It can undertake crime prevention and control without compromising human rights

Religious Freedom

There are major issues pertaining to religious freedom of both Muslims and non-Muslims.

The UN country report notes that “the rise in state-led conservative Muslim ideology threatened the ability of Muslims to practice their religion in a form and content than as prescribed by the religious authorities”.
Datuk A Vathilingam notes that while the Malaysian government report highlights the place of Syariah legal system it however does not identify the unresolved issues pertaining to non-Muslims over conversion matters to Islam or out of Islam. These are not mentioned in any of the three reports.

He notes that child custody over divorce when one party is a new convert to Islam and the spouse does not convert; the body for burial issue of verification of un-confessed converts to Islam who die before their conversion is made public knowledge continue to be major areas of concern.

 According to him the root cause of this is the amendments to the Federal Constitution Article 121 (1A) on the Civil and Sharia court jurisdiction especially when the civil courts do not want to exercise its Constitutional position in hearing such cases.

On the matter pertaining to the use of the Arabic word Allah by Bahasa Malaysia Christians for God, Tan Sri Ramon Navaratnam who did not attend the discussion however submitted in writing his views on religious freedom.

He affirms that “there is no violation of human rights as critical as the denial of one’s basic human right to call God by any name one chooses to do so. This is a fundamental and sacred human right that must be protected by the Government and all Malaysia’s, to preserve and promote national unity and the PM’s call for moderation. He also indicated that “we need to also see evidence of Government’s intolerance of extremism and extremists, for all Malaysians to be assured that Government means what it says and says what it means, for no one to hurt anyone’s feelings”

Proham has taken the position that there is an erosion of religious freedom with a rise of intolerance in the way public officials are handing the matters pertaining to non-Islamic religions. There is an urgent need to establish effective community mediation channels to resolve many of these concerns within a multi religious and multi ethnic society
Conclusion

Tan Sri Simon Sipaun recognises that “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”.
We therefore have a collaborative task with Government and human rights activist though a consultative process as partners and human right defenders so as to build a nation with a very high commitment to human rights, justice and fairness of all human being irrespective of ethnicity, religion gender, location, class and socio-economic potion.
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The panel presentations at the Proham Discussion on UPR & Malaysia hosted on Oct 22, 2013 are available at Proham blog. See http://proham.blogspot.com

Reflections from Proham Discussion on UPR & Malaysia

UPR & Reports

Malaysia's human rights position is reviewed by the global community at the Universal Periodic Review (UPR), led done by the Human Rights Council in Geneva on October 24, 2013.  The country was last reviewed in 2009. There are specific reports on Malaysia and its human rights position over the past years, namely the UPR 2013 Malaysian Government report, the UPR 2013 NGO report and the UPR 2013 UN Malaysia report. 

This Proham discussion is aimed at highlighting the UPR process in enhancing human rights compliance and analysing the content of the three reports. The session also discussed the current status of human rights in Malaysia.

Participants at Proham discussion

About 20 people participated at the Proham discussion. The panel speakers at the session were Proham chairman Tan Sri Simon Sipaun, United Nations (UN) Malaysia Special Coordinator Juanita Lourdes Joseph, Global Movement of Moderates (GMM) chief executive officer Datuk Saifuddin Abdullah, Human Rights Commission of Malaysia (Suhakam) head of International Coordination division Rafidah Yahya.

The discussion was moderated by Proham secretary-general Datuk Dr Denison Jayasooria.  Among the attendees were Proham members Datuk Siva Subramanium and Datuk A. Vaithilingam, Muslim Youth Movement of Malaysia (ABIM) secretary-general Mohamad Raimi Ab Rahim, ERA Consumer Malaysia human rights director Muhammad Sha'ani Abdullah, Suara Rakyat Malaysia (Suaram) leader Cynthia Gabriel, representatives from the Australian High Commission and the New Zealand High Commission, and representatives from the Citizens' Network for a Better Malaysia.

VIEW POINTS ON UPR & MALAYSIAN SOCIETY

Participants at the Proham discussion raised their concerns on six key issues.

Awareness about human rights

More needs to be done to create awareness about human rights, about tools like the UPR and other similar mechanisms.  Materials should not only be in English but also in Bahasa Malaysia.  Malay language newspapers other than Utusan Malaysia must take up the initiative to cover human rights and the UPR.  There is a need to create better discussion, rather than to allow Utusan Malaysia to take the lead, and play up anti-Islam issues and gay rights in relation to the UPR. Having human rights materials and booklets in Malay and in simpler terms also encourages more NGOs to easily understand.  The awareness being promoted currently was wrong that human rights was incompatible to Islam.

More NGOs should submit reports and not only rely on COMANGO as it was unable to cover all areas due to limitations set by the process.  More needs to be done to encourage participation of NGOs in this mechanism and promote better understanding of consultation.

The Home Affairs Ministry must be reminded to study the UPR and reports related to the process, as they seem to have forgotten about Malaysia's commitments.  This is reflected in what some MPs articulate in the Parliament which seem to undermine what Malaysia has done.

Cairo declaration or the UDHR

Malaysia is a signatory to the Cairo Declaration on Human Rights which is endorsed by 50 OIC countries. It is a complementary declaration to the Universal Declaration of Human Rights (UDHR). Cairo Declaration one of principles state that all human beings are created by God and should be treated equally, this Declaration is also against any monopoly of business which will help address the monopoly by government-linked companies in Malaysia.

The Declaration also mentions that no one could be forced into any religion, which could be more acceptable compared to UDHR' discussions about the right to change religions. Muslims groups that object to UDHR and make reference to it as being western could find the Cario Declaration providing a strong human rights commitment based on Islamic principles

International Conventions: complying first or ratifying first

Malaysia needs to ratify or accede first to international conventions, before allowing time for legislation to be meet the changes needed for the international treaty.  Ratification gives the country as deadline to push for all legislation to meet the requirements of global treaties. Ensuring compliance of all legislation before ratification is a long and time consuming process, and delays the responsibility of Malaysia towards fulfilling these human rights obligations. This contributes to the country's poor ranking in world indices, compared to OIC countries and lumping Malaysia in the same category as Communist regimes and Zimbabwe.

Independent judiciary in religious issues

The issues of conversion and jurisdiction of the Syariah courts is not captured in any of the three reports. No mention of Article 121 (1A) in the Federal Constitution and the struggles in the submissions by the government, UN or NGOs.  Also, the Syariah courts must be seen to be fair in investigation of non-Muslim cases as cases have shown. The judiciary (in Syariah and civil courts) must be more independent, absolve themselves from personal feelings. This applies to leadership to remain calm and not panic when certain ultras or right-wing leaders make statements.

Indigenous peoples issues

More attention need to be paid to protecting the rights of indigenous peoples, particularly in how indigenous children are treated by teachers and the current school systems.

Existing human rights mechanisms

It is important to look at current mechanisms that exist within government antigenic that were tasked to discuss human rights issues, such as a committee under the government’s Unity Department to promote inter-faith.  Contentious issues such as the Lina Joy and Al-Kitab issues were not discussed in these special committees.  There is need to empower current institutions as avenues to deal with human rights issues and renew commitments to existing agencies. 

KEY CONCLUSIONS

Seven key areas were highlighted by the participants:-

• There needs to be more awareness about human rights and tools like the UPR and other similar mechanisms. Awareness must not only be at ministries in Putrajaya but also at grassroot levels in NGOs and state government agencies. 
• More NGOs should take part in the UPR process and more needs to be done to promote better understanding of what is involved in a consultation. 
• Malaysian Muslims who are having difficulties with the UDHR should recognise that Malaysia has also adopted the principles of the Cairo Declaration.
• Malaysia must consider ratification first for core treaties to fulfil its human rights responsibilities, then move towards gradual change of its legislation to comply with these conventions. This would also help push up its rankings from the bottom half of most global indices. 
• The importance of an independent judiciary is stressed, when judging religious issues. 
• Once again, the rights indigenous people were overlooked and more attention needs to be paid to these communities, particularly of their children in current school systems.
• Existing human rights mechanisms must be relooked and agencies empowered to discuss important issues involving human rights and religious issues.

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Ms Susan Tan documented these thoughts based on the Proham discussions held on Oct 22, 2013

UN Malaysia country office & UPR Review

Ms Juanita seated next to Tan Sri Simon

by Ms Juanita Joseph (UN Malaysia Coordination Specialist), UN Country Team in Malaysia

The UN system in Malaysia is represented by the UN Country Team (UNCT) - 10 resident agencies and five non-resident agencies, programmes and funds.  The mandate for human rights is held by the Office of the High Commission for Human Rights (OHCHR) in Bangkok. 

In Malaysia, there is a UN Human Rights and Development Theme Group comprising the UN Refugee Agency (UNHCR), UN Development Programme (UNDP), United Nations Children's Fund (UNICEF), UN Population Fund (UNFPA) and the International Labour Organisation (ILO).

CSOs and the UPR

In 2013, there were 28 submissions for the UPR from various stakeholders such as civil society organisations (CSO) and NGOs, reflecting a growing strength of the NGO movement in Malaysia. The OHCHR compiles all submissions into a single report and it is important to note, that the stakeholders' report  does not contain opinions, judgments, suggestions or determinations by the OHCHR.  The same applies to the UN information compiled by the OHCHR. 

Hence, what NGOs and CSOs would normally do following this, would be to lobby the issues with member states as the UPR process is a member state driven process and it really depends on them, and requires action from these member states.  Some NGOs organise reviews a month or two before the actual UPR process.  The process provides the opportunity for each state to declare what actions they have taken to improve human rights situation in their country and to fulfil their human rights obligations.  The process reminds them of their responsibility towards human rights in their respective countries. The UPR is not legally binding but does make countries accountable.

Malaysian Government & UPR

There is commitment on the part of the government.  The government has formed a technical committee to study and ratify the remaining core conventions.    From our understanding. the department under the Minister in the PM’s department in charge of law, is conducting studies and undertaking research in relation to the national human rights action plan.  The UN would like to see a good connection between the Plan and the outcome of UPR process.

Post UPR & Malaysia

UN is pleased that the Malaysian government had invited the UN Special Rapporteur on the Right to Food in December 2013, whose focus areas include social protection and labour, purchasing power and issues related to development projects and the environment.

The UN Special Rapporteur on Minority Rights was in Malaysia, although not on an official basis, she met with several high ranking officials of government.

In implementing human rights obligations under the conventions and treaties that Malaysia has ratified, the various UN agencies engage with relevant ministries to encourage them to get their reports done on time.

It would be good to have mechanisms in place to monitor and engage the  government during the post-UPR period.  There is a need to increase the level of human rights awareness in Malaysia in order for the UPR to work.

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Thoughts shared at the Proham Discussion on the UPR and Malaysia on Oct 22, 2013. The thoughts have been documented by Ms Susan Tan on behalf of Proham

Datuk Saifuddin Abdullah on GMM, Human Rights, UPR & Malaysia

Datuk Saifuddin sharing his views at the Proham Discussion on Oct 22, 2013

GMM's role internationally and domestically

The GMM is a foundation formed by Prime Minister (PM) Datuk Seri Najib Razak  to promote moderation as an idea and principle in international relations, used as Malaysia’s offerings to UN members, as part of a lobby to secure one of the non-permanent seats on the UN Security Council (UNSC) in 2015. 

GMM is not just about international relations, and even it is so, Malaysia has to clean up its own backyard. GMM is formed as part of transition in Malaysia’s role on the international stage, not just because Malaysia wants to be part of the UNSC and to assume chairmanship of Asean in 2015, the PM wants a more active role on international front as it is normally expected when a country starts to become a developed country. 

Human rights is one of the issue being questioned at the international stage and people would ask how is it that Malaysia is not acceding to many of the core human rights conventions.

Malaysia's standing among member nations of world, being party to some human rights convention is not very interesting.  Malaysia has successfully scored very low in all of the rankings, eight out of 10 in Asean, bottom of the Organisation of Islamic Cooperation (OIC) countries (55/55),  second last place in the Non-Aligned Movement (NAM) and 187 out of 195 in member states after 2009.  It's not numbers that Malaysia could be proud of. 

Malaysia Progressive Human Rights Role Internationally

When it comes to certain human rights issues, Malaysia tend to play a positive role like supporting the Rohingyas, refugees from the Southern Philippines and southern Thailand, playing a part in humanitarian aid during the ethnic cleansing incidents in Bosnia.  Uncertain why among diplomatic network, they say when they inform their capital, that they were concerned with human rights issues, the capital replies, “I thought Malaysia is doing quite well.” 

Malaysia seems to be able to show a progressive front but at the same time, Malaysia seems to practise as a very low denominator in human rights areas. This paradox has become more glaring, especially at a time when the PM on the one hand wants to be progressive. But at the same time, not withstanding the UMNO elections as Ministers make all types of statements, if these get out to the public it's not going to help Malaysia's profile in human rights affairs.

Human Rights in Domestic aspects

Malaysia needs to encourage the Malaysian leaderships, government and officers, to motivate them to do more when it comes to human rights.  At one level, Malaysia needs to address one or two Ministers, especially those in charge of important portfolios and several Barisan Nasional MPs.  Malaysia needs a good strategy to identify the Mps to work with and encourage the formation of human rights caucuses and other related groups.   Consultation is not something government officers understand very well, they probably understand it by the definition, “So long I meet you it's consultation.” As and when the government say they consult, it must be asked, what is the meaning of consultation. It could be a meeting to inform people and not as most human rights advocates understand it. 

Future of Human Rights in Malaysia

Malaysia needs to strategies how to get support for some of the proposals here by Suhakam and the CSOs, on the National Human Rights Plan and the Parliamentary Select Committee.  Getting the Suhakam report debated in the Parliament, it would take time before the government takes it on as an agenda. Perhaps the human rights network could strategise if people could debate this report in some way or another, may not be as fulfilling as being discussed in the Parliament, but it is a start.  T

he Law Reform Commission should be revisited, on whether the new appointees of the human rights portfolios in the government were as enthusiastic as the last.  A timeline is needed to monitor the government's commitments to the UPR outcomes.  More CSOs should come on board in the future UPR processes.

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Thoughts documented by Ms Susan Tan for Proham. Views shared by Datuk Saifuddin Abdullah (GMM, CEO) at the Proham discussion on the UPR on Oct 22, 2013

 

 

 

 

 

UPR & Malaysia :Suhakam Submissions

Rafidah, Datuk Saifuddin, Denison & Tan Sri Simon at the Proham RTD

By Puan Rafidah Yahya, Head of International Coordination Division

The UPR is important work. Since its introduction in 2006, Suhakam has been supportive.  The commission sees the review as supportive to what CSOs and Suhakam has been doing and to be brought to international levels for support from the UN and international organisations. 

Suhakam has observer status, but it has taken upon itself to be involved, by making submissions.  One goes to the UN and another to the government, so they know the commission was monitoring them. Suhakam made its first submission to the UN and the government in 2008, before the first UPR.  These were compiled through Suhakam's observation of the human rights situation in Malaysia, along with consultations with the media and NGOs.  By March 2014, Suhakam may have three minutes floor time.  For this year's UPR Suhakam had again submitted reports to the UN and government, based on the consultations done.

Accession to human rights treaties

The government is committed to look into feasibility of state parties to the nine human rights conventions. In April 2012, Malaysia acceded two optional protocols for the UN's Convention  on the Rights of the Child, involving armed conflict and exploitation.  But Malaysia has certain reservations, involving the discrimination of women. The government has established a technical sub-committee and they are doing feasibility studies on how to become party to international conventions like the UN Convention Against Torture and the International  Convention on the Elimination of All Forms of  Racial Discrimination.

Suhakam follows up with the Ministry of Foreign Affairs, and in one of the meetings, Suhakam has been told that they would be ready to accede the International Covenant on Economic, Social and Cultural Rights by the end of 2013. This would be monitored.

On the other treaties, the government has said they want to be prepared before they accede the conventions, meaning that the laws must be in line with the conventions before they can be acceded to avoid contravention of provisions.  For this point, Suhakam informed them, through its submissions, this should not be seen as impediment.  It could be a foundation for gradual changes to the Malaysian laws. 

The recommendation on the National Human Rights Plan, based on Suhakam's meetings with the legal dept of the PM's department, they said they are developing an action plan.  They have appointed several universities to do baseline studies so it will take a bit of time as they are trying to study all parts of the legislation.  Suhakam has been told that there will be a steering committee meeting in November 2013 and its contents were vague.

The process has been very slow, from Suhakam's first recommendation, it's been more than 10 years.  From then, Suhakam has been regularly following up with this legal department. Suhakam has raised the issue of meaningful consultation, because it seems that the government is working quietly.  Suhakam is urging them to make sure they consult relevant stakeholders.

On the Parliamentary Select Committee on Human Rights, as announced by Minister Datuk Seri Mohamed Nazri Aziz, it was uncertain about the outcome as there was a cabinet reshuffle. The human rights portfolio has been split and now three people were responsible for it.  Suhakam feels that since the government has taken up this recommendation, the commission would continue to push and see this as a good channel to get the Suhakam's annual report to be debated through this Parliamentary Select Committee.

Amendments to Human Rights Commission Of Malaysia (Suhakam) Act 1999

This was pertaining to the term commissioners and how commissioners are selected. Suhakam is going to push for further amendments, among them, include the need for surprise visits to detention centres, performing a mediation role to resolve complaints, strengthening roles in human rights cases and to push for the debate of the commission's annual report in the Parliament. Most are old recommendations, but Suhakam continues to push for them. As far as visits to prisons, Suhakam is not allowed to make surprise visits, but informs prison authorities of their visit.

Suhakam has highlighted and studied current recommendations pertaining to vulnerable groups and preventive detention.  When the commission sent its UPR submissions, it was at a stage when the Internal Security Act was abolished, but after that the PCA was drafted which was a step back.  Suhakam made known its position that it is against IA, where innocents are innocent until proven guilty.   Suhakam is now putting more pressure in meetings with the government.

Businesses and human rights

Companies must ensure human rights for its workers and other rights affected by operations.  Operations by companies like logging companies affect indigenous rights, land rights, Suhakam has urged the government to curb this.  Suhakam encouraged businesses to look at the guiding principles of the UN when running operations to protect human rights.

Rights of Indigenous peoples (IP), women and children

At the conclusion of the national inquiry, some of the areas covered include the recognition of IP concept of native land. Currently, the law doesn't take into account what IP consider as the definition of native land.  What the law is saying is what the government wants to be native land and not what IP have followed through generations. There are other concerns, such as their land being included in protected areas, being included in development areas, compensation issues and the prior and informed consent. Usually land is taken away and being developed without their consent.

Suhakam urge the government to ensure commitment to increasing women's role in decision-making processes, curbing sexual abuse in marriages and at the workplace.  The commission also urged the government to ensure economic, social, and cultural rights for the disabled children and refugee children.  Migrant workers must also be protected, especially in allowing them the right to unionise and preventing their passports from being taken.  This makes it easy for a migrant worker to become a trafficking victim.  Suhakam has not seen the progress of any recognition of refugees and asylum-seekers.

UPR process

On the UPR process and  follow up by the government, meaningful consultation does not happen. When Suhakam carries out consultations with agencies, CSO and the media, those at grassroots levels particularly the state government agencies do not know what UPR was and do not know what the government had committed to.  Only in Putrajaya people know what UPR is. For them to have meaningful conversations, people at grassroots levels should know what UPR is.  Suhakam consults both MP camps in Parliament. 

Suhakam will continue to step up effort to raise awareness of human rights and the implementation of recommendations.

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Summary of verbal presentation is written by Ms Susan Tan for Proham. The thoughts were shared by Puan Rafidah Yayah at the Proham discussion on the URP and Malaysia on Oct 22, 2013

Proham reflections on the UPR and Human Rights in Malaysia

by Tan Sri Simon Sipaun (Proham Chairman)

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.

 

 

 

 

EROSION OF RELIGIOUS FREEDOM IN MALAYSIA

Proham views with grave concern the recent judgment by the Court of Appeal in its interpretation of Article 11 of the Federal Constitution as eroding religious freedom in Malaysia.

In this connection, Proham makes reference to the views of the Bar Council on this matter in which it stated that the way Article 3(1) was interpreted “was an unnatural reading” on the status of Islam and other religions. The Bar Council took the position that this words “in peace and harmony simply means “the right of other religions to be practiced unmolested and free of threats”.

This section was clearly explained by Constitutional Law expert Prof Abdul Aziz Bari to mean while Islam is the religion of the Federation “…non-Muslims may go on practicing their religions freely without restrictions”.

In this context Article 11 should be read within the Fundamental Liberties and the only restrain to religious freedom is the provision in Article 11(4) which is a reference “to propagation” and not practice of religion.

Proham also notes with deep concern the confusion of interpretations expounded. There are so many legal views expounded in the media by ministers, legal experts, the attorney general and the former attorney general. Some say that the prohibition is only in use of the word Allah in the Herald but others indicate that it is a blanket ruling against all non-Muslims.

This therefore requires clear judicial clarity through an appeal process to the Federal Court so that the views of the bahasa Malaysia speaking Christians who are the natives of Sabah and Sarawak are seriously considered. The Attorney General should also highlight to the Federal Court the 10 point solution announced by the Government in 2011.

Proham reiterates that it is the fundamental right of an individual or institution to commence proceedings in Court should they feel their basic rights are being threatened or infringed upon and such proceedings should not be discouraged or frowned upon and they should not be seen as trouble makers or instigators.

Proham welcomes the call of the Prime Minister, Datuk Seri Najib Razak when he stated that “Muslims should not hurt the feelings of the non-Muslims and non-Muslims should not hurt the feelings of Muslim’’. The Prime Minister went on further to state that “Malaysian of all races and religious beliefs must help preserve the unity in the diversity of the people”.

However, Proham observes that a number of groups have been calling for the burning of Bibles, the ban of the Al-kitab, even calling people unhappy with the Court of Appeal decision to leave Malaysia. This is creating insecurities especially among the minorities and undermining peace and harmony. However these individuals and groups are not restrained in any way.

Proham views with deep concern these matters and calls on the officials to take appropriate action on the groups sowing seeding of disharmony and therefore the Ministry of Home Affairs is required to do more than just providing political assurances. – October 22, 2013.

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Issued on behalf of The Association for the Promotion of Human Rights (Proham) by Datuk Kuthubul Zaman Bukhari (Proham Exco) and Datuk Dr Denison Jayasooria (Proham Secretary General).