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Malaysia’s Rule of Law & Human Rights

Malaysia’s superior courts include the High Courts, the Court of Appeal and the Federal Court. The Federal Court is the highest appeal court and is intended to deal with important points of law, including constitutional matters. There are two High Courts in Malaysia occupying equal positions within the court hierarchy; the High Court of Malaya in peninsula Malaysia and the High Court of Sabah and Sarawak in Borneo. The subordinate courts include, from lowest to highest, Village Head Courts, Juvenile Courts, Magistrates Courts and Sessions Courts. A Sessions Court has the jurisdiction to hear both civil and criminal cases, but not crimes that attract the death sentence or civil cases involving large sums of money.

The Constitution, in principle, provides for a separation of powers between the judiciary, executive and legislature. Criticism has been levied, however, at the government’s control over judicial appointments and the impact this has on the judiciary’s independence.

Malaysia has a National Human Rights Commission with the power to accept individual complaints of human rights abuse. The Commission’s findings and recommendations, however, are not binding. Other national institutions relevant to the promotion and protection of human rights and rule of law include the Judicial Appointments Commission, Public Complaints Bureau, Malaysian Anti-Corruption Commission, Enforcement Agency Integrity Commission, Election Commission of Malaysia, and the National Audit Department. The Auditor General’s role is to ensure that state bodies spend public funds appropriately and does not have as broad a mandate as a public Ombudsman’s office to investigate abuse of power by public servants.

Malaysia has ratified several international human rights treaties, including the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC) and its two Optional Protocols on the Sale of Children, Child Prostitution and Child Pornography and the Involvement of Children in Armed Conflict. Malaysia maintains reservations against treaty provisions seen to conflict with Islamic and national law. The majority of the CRC provisions have been incorporated into domestic law via the 2001 Child Act.

In 2010, Malaysia ratified the Convention on the Rights of Persons with Disabilities but declared that it would not be bound by Articles 15 and 18; “Freedom from torture or cruel, inhuman or degrading treatment or punishment”, and “Liberty of movement and nationality for persons with disabilities”. Other obligations under the treaty have been codified in the 2008 Persons with Disabilities Act.

Malaysia has also ratified six of the eight International Labour Organization Core Conventions. In 1990, Malaysia denounced C.105 on the Abolition of Forced Labour.

Despite constitutional guarantees of human rights (Articles 5-12), various human rights violations were reported and highlighted during the Universal Periodic Review (UPR) session on 11 February 2009. These violations included: those arising from the duel Shariah-civil law systems; continued discrimination against racial and religious minorities; lesbian, gay, bisexual, and transgender (LGBT) communities, disabled persons and women; and, Acts and Emergency Ordinances that allow for arrest and prolonged detention in the absence of judicial review.

The UPR Working Group Report made multiple recommendations regarding improving the situation of refugees and migrant workers in Malaysia, the majority of which were rejected. Malaysia also rejected recommendations to abolish the death penalty, and corporal punishment.

The UPR called on Malaysia to ratify the other main international human rights conventions and relevant Optional Protocols, and to revoke its reservations to CEDAW and CRC. Malaysia, however, rejected these recommendations. Malaysia has not issued a standing invitation to the UN Special Procedures and has not responded to country visit requests from ten special procedures. Malaysia’s most recent interaction with a Special Procedure was the Working Group on Arbitrary Detention’s 2010 visit to Malaysia.