Proham reflections on the UPR and human rights in Malaysia

According to the United Nation (UN) Secretary-General, Mr Ban Ki-moon the Universal Periodic Review (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 March 15, 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 February 11, 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 October 2, 2013. For the record Proham has issued press statements against the amendments. It has also organized a discussion on the subject on September 30, 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 October 24, 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 Kuala Lumpur High Court Judge Lau Bee Lan’s 2009 decision that the Home Ministry’s ban on the term ‘Allah’  by the Catholic weekly  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 three 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 labeled 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 April 24, 2000. It has prepared 12 annual reports but none has ever been debated in Parliament. One of its four 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 April 28, 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 and 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 Recommendation

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.