FIDH-SUARAM Advocacy note
The economic growth and societal change of Malaysia require more rather than less attention to human rights issues by the European Union. With the upgrading of Malaysia to the status of upper-middle-income country, the country will not benefit any longer from bilateral EU aid. Economic development is however not an automatic synonym of improvement of the human rights situation in a country. In Malaysia, the GDP growth is hiding an increase of authoritarianism, poor governance, spiralling corruption, and declining religious tolerance. A few months ago, Malaysian Prime Minister Najib Tun Razak explicitly presented “humanism, secularism, liberalism and human rights” as new threats to the country.
In the perspective of the EU Treaty’s obligations (article 21) and Strategic Framework on Human Rights and Democracy, the EU must use strategically the current PCA and FTA negotiations  with Malaysia to obtain human rights improvements, starting with the ratification of the core international human rights treaties. The EU, as an important trade partner of Malaysia , must use its political leverage on this country in a more assertive way.
FIDH and SUARAM draw the EU’s attention towards the following human rights challenges and call on Brussels to work with Malaysian civil society on the proposed solutions.
1. Publicly challenging Malaysia’s records on human rights
During its 2013 Universal Periodic Review , Malaysia accepted 150 recommendations out of the 235 made by other states. Malaysia refused most of the recommendations concerning civil and political rights, including the revision or repeal of the Sedition Act, the Peaceful Assembly Act, the Prevention of Crime Act, the Security Offences (Special Measures) Act, and the Evidence Act. The SUARAM briefing illustrates the serious restrictions on freedom of expression and peaceful assembly as well as the arsenal of repressive laws that allow the Malaysian authorities to crack down on dissent . This repression is also made possible by police abuses, which often results in torture and death in custody, by the control of the executive branch over the judiciary, and by a worrying deterioration of media freedom, ranging from technical interference to physical attacks on reporters.
Until now, apart from the occasional criticism by the European Parliament with regard to cases concerning prominent figures (like the conviction of Malaysian opposition leader Anwar Ibrahim), the European Union has generally refrained from expressing concern over human rights violations in Malaysia publicly. The EU’s support for human rights in Malaysia mostly focused on campaigns for the abolition of the death penalty and the ratification of the Rome Statute of the International Criminal Court (ICC). However, neither objective has yet been reached. While these efforts must continue, it is important that the EU responds more effectively to human rights violations in Malaysia.
In its interaction with Malaysian authorities, the EU must broaden the agenda to areas such as the rights to freedom of expression, assembly, and association, as well as the impact of business on human rights.
EU’s engagement must not be limited to the highest level of government, but also seek to promote the role of civil society in discussions with authorities.
2. Addressing the impacts business activities on human rights
The EU and Malaysian must take tangible measures to prevent human rights violations stemming from their own policies. For a fast growing economy like Malaysia, this means a particular focus on investment and development projects.
In the absence of human rights safeguards, Malaysia’s 11th Development Plan as well as projects such as the Sarawak Corridor of Renewable Energy risk severely affecting the right of indigenous peoples.
Malaysia’s rejection of several important UPR recommendations regarding indigenous peoples has further heightened concerns over the impact of development projects on these vulnerable communities . The EU must keep monitoring Malaysia’s development policies and ensure that human rights violations are adequately addressed through redress mechanisms. Policies must be put in place to prevent the recurrence of such abuses by conducting impact assessments and genuine consultation with affected communities.
The EU and Malaysia have also pay special attention to business operations in the country. More than 2,000 companies from EU Member States operate in Malaysia . In order to ensure that these companies’ activities do not negatively affect human rights, the EU, in cooperation with its Member States and their companies, must promote the adoption of domestic legislation and business investment frameworks that is in line with international principles on business and human rights.
3. Using Treaties’ negotiations to obtain genuine human rights commitments
FIDH and SUARAM welcome the fact that the draft agreement on the EU-Malaysia Partnership and Cooperation Agreement (PCA) contains a human rights clause. However, our organisations call on the EU not to reduce human rights to a mere formality in future FTA and PCA agreements. Merely having a human rights dialogue after the conclusion of the PCA falls short of fulfilling the EU’s commitments on human right in accordance with the Lisbon Treaty and the Strategic Framework for Democracy and Human Rights. The stablishment of a enhanced human rights dialogue is welcomed as long as proper participation from civil society is ensured.
The negotiations of the PCA and the FTA must also be conceived as a dynamic process allowing the EU and Malaysian to work together on human rights-related actions before the agreements are concluded. The roadmap, which the EU and Malaysia should establish through genuine participation of the civil society (see recommendations), must aim at the repeal or amendment of all repressive laws before the conclusion of the agreements. A special emphasis must be put on the amendment or repeal of those laws that are frequently used to crack down on activists and communities who protest against harmful development and economic projects.
In addition, the EU and Malaysia must work on agreeing on a human rights clause within the FTA with the aim to become an effective tool to address human rights issues in the country (see recommendations).
4. Supporting civil society activities
FIDH and SUARAM believe that the EU has overall been supportive of the work of human rights NGOs in Malaysia. The EU Delegation and Member States’ missions regularly meet with civil society and human rights activists, bilaterally or through the EU’s Human Rights Working Group, to discuss issues such as women’s rights, the elimination of racial discrimination, and freedom of expression. The EU Delegation maintains regular exchanges with NGOs, sends observers to trials against human rights defenders, and promotes the content of the EU Guidelines on Human Rights Defenders.
In recent years, the EU has provided financial support to NGOs working in the field of women’s and children’s rights, non-discrimination, freedom of the media, and indigenous people. With the current reduction of staff in the EU Delegation , civil society will now have to turn to Global Calls for Proposals to find support for its activities rather than seeking financial support directly at Delegation level through Country Based Support Schemes (CBSS). FIDH and SUARAM fear that such a change may have consequences on the effectiveness and sustainability of civil society activities. Many NGOs may not have the capacity to respond to the Calls for Proposals or to absorb the important amount of finance offered in calls designed for large- rather than middle-sized projects. It is therefore important for the EU to find alternative ways to support civil society beyond small emergency grants, for example in the form of funds at the regional level or sub-grants to local NGOs.
The EU must also step up its political support to civil society. The EU must push for the amendment of the 1966 Societies Act, which offers no judicial remedy to an association whose registration has been suspended or refused by the authorities. The EU must ensure that FTA provides for a genuine enabling environment for civil society.
Failure to do so would create a democratic gap in terms of monitoring of the agreement. The negotiation process should be an opportunity to hold tripartite discussions between the EU, Malaysian authorities, and civil society. The EU should offer technical advice to Malaysian authorities to reform the Societies Act and ensure the new version complies with international standards.
The fact that Malaysian authorities continue to criminalise peaceful assembly after the Court of Appeals declared a section of the Peaceful Assembly Act as unconstitutional is proof of the political will to repress peaceful assembly. This issue should be addressed by the EU at the highest levels of the political dialogue. The EU should also address the issue of recent calls made by Malaysian government officials to adopt legislation similar to the Indian Foreign Agents Registration Act, which would provide a legal basis for monitoring of foreign funds to civil society organisations.
FIDH and SUARAM call on the EU and its Members States to:
- Publicly and firmly condemn all types of human rights violations occurring in Malaysia and urge an immediate end to the harassment, persecution, and arbitrary arrest of its citizens for political reasons.
- Demand the immediate release of individuals convicted for political reasons, notably under the Sedition Act.
- Demand that Malaysia live up to its international pledges, in particular in the perspective of the Malaysian Chairmanship of ASEAN in 2015.
- Establish a human rights roadmap in cooperation with Malaysian authorities and civil society, in order to achieve tangible results before the FTA are agreed. This roadmap must contains the following minimum elements:
- Adoption of a moratorium on all executions with a view to abolish the death penalty;
- Repeal of the 1948 Sedition Act and amendment or repeal all other laws which are not in line with international standards, including: the 2012 Peaceful Assembly Act; the 2012 Security Offences (Special Measures) Act; the 1959 Prevention of Crime Act (PCA); the 1985 Dangerous Drugs (Special Preventive Measures) Act; the 1960 Evidence (Amendments) Act; various amendments to the Criminal Code; the 1972 Official Secrets Act; and the 1984 Printing Presses Publications Act.
- Ratification of key international human rights conventions, including the ICCPR, the ICESCR, the CAT, the CERD, ILO Convention 169, the ICC Rome Statute, and the 1951 Convention Relating to the Status of Refugee and its optional protocol.
- Implementation of all the recommendations accepted by the Malaysian government during the 2013 UPR.
- Adoption of a National Human Rights Action Plan that is in line with the above-mentioned objectives.
- Ensure that human rights are included in the negotiations and the structure of the future Free Trade Agreement (FTA) with Malaysia. Key aspects must include:
- Conducting a Human Rights Impact Assessment (HRIA) through genuine and comprehensive consultations with the civil society;
- Establishing a civil society observatory for the impacts of the FTA on human rights.
- Ensuring that Malaysia’s National Development Plan includes capacity building and implementation of flanking measures that address the impacts of the FTA.
- Designing the human rights clause of the FTA in order to ensure respect of human rights standards by the parties and companies and provide an efficient enforcement mechanism with opportunities for judicial and non-judicial remedies and penalties in case of violations. The clause must also guarantee the right’s of states to regulate, protect, respect and fulfil human rights. The FTA must not provide protection for investors responsible for human rights violations against individuals and communities affected by their investments.
- Place the support for civil society, human rights defenders, local communities, and indigenous peoples at the centre of their interactions with Malaysia. EU and its Members States must:
- Urge the Malaysian authorities to ensure that all citizens’ human rights, including the rights to freedom of expression and assembly are respected;
- Press Malaysian authorities to amend the Societies Act to bring it in line with international standards, and provide technical support to that effect;
- Press for effective and immediate investigation into serious cases of human rights violations, and the formation of an Independent Police Complaint and Misconduct Commission (IPCMC) to investigate allegations of torture and deaths in police custody;
- Demand that Malaysian authorities set a date for the country visit of the UN Special Rapporteur (UNSR) on Freedom of Assembly and Association and extend an invitation to the UNSR on the rights of Indigenous Peoples and the UNSR on Freedom of Religion;
- Organize a civil society seminar before the EU-Malaysia human rights and political dialogues;
- Include civil society in sectoral discussions and in the negotiation process of the FTA;
- Propose alternatives to make up for the end of Country Based Support Schemes in order to ensure financial support to the work of human rights NGO.
- Encourage Malaysian authorities and companies to adopt binding regulations and a business investment framework to prevent human rights violations by economic operators and ensure accountability in the case abuses take place. Regulations must be in line with international human rights standards, including the UN Guiding Principles on Business and Human Rights.
- Prepare a strategy on business and human rights that ensures that current and future investments by EU-based companies do not negatively affect human rights in Malaysia. This strategy, to be designed with Malaysian authorities, companies, and civil society, should aim at setting up binding regulatory measures corresponding in line with international standards.
- Work with Malaysian authorities to ensure that their development plans do not negatively affect human rights.
 PCA: Political and Cooperation Agreement, FTA: Free Trade Agreement.
 Malaysia is the EU’s second most important trading partner in ASEAN, after Singapore. The EU is Malaysia’s fourth largest trading partner with a total trade of €33 billion in external trade.
 UPR info, Responses to Recommendations & Voluntary Pledges by Malaysia, Second review, Session 17, October
 The period following the May 2013 elections has been marked by an increase in the arbitrary and abusive application of the Sedition Act, targeting elected Members of Parliament, lawyers, academics, social activists, students and journalists. Although the government has repeatedly pledged to repeal the law, no action has been taken so far. A National Harmony Bill is said to be in preparation to replace the Sedition Act but the civil society has not been informed or consulted. The Peaceful Assembly Act is another key piece of legislation used to restrict the rights to freedom of assembly and association. It has particularly been used to persecute organisers of peaceful “Black 505” opposition rallies called to protest alleged electoral fraud in the 2013 elections.
 Notably concerning the need to set up an independent body to investigate disputes over land, territories and resources and the need to take measures, with full and effective participation of indigenous peoples, to address the issues highlighted in the National Enquiry into the Land Rights of Indigenous Peoples. However the authorities accepted the recommendations entailing a more top-down approach to the destiny of indigenous peoples (i.e. aiming at eradicating
poverty or enhancing economic and social welfare but in the absence of consultation process and free, prior and informed consent). http://nhri.ohchr.org/EN/Themes/BusinessHR/Business%20Womens%20and%20Childrens
 Ministry of International Trade and Industry, Malaysia, « European SME’s In Malaysia To Benefit From New EUMCCI
Web Portal », 01 Oct 2014 , http://www.miti.gov.my/cms/content.jsp?id=com.tms.cms.article.Article_c9b98dc9-
 The operational section at the EU Delegation has been closed following the upgrading of Malaysia to the status of upper-middle-income country.