The challenge to ratify Universal Human Rights Conventions

Tan Sri Hasmy Agam, head of Malaysia’s Human Rights Commission (Suhakam), Datuk Saifuddin Abdullah, head of Malaysia’s Global Movement of Moderates (GMMF), Proham, an association of former Malaysian Human Rights Commissioners, and many others have urged Malaysia to ratify 7 additional United Nations Core Human Rights instruments by 2020.

The UN’s Universal Periodic Review (UPR) of Malaysia which was conducted on 24 October 2013 continues to be widely discussed.

On 9 December, Proham and GMMF hosted a discussion on the UPR. It included presentations from constitutional expert Professor Shad Saleem Faruqi and Malaysia’s OIC Human Rights Commissioner and specialist in Islamic law, Professor Raihanah Abdullah and Datuk Dr Denison Jayasooria, principal research fellow at UKM and a former Human Rights Commissioner.

On 10 December, the world observed United Nations Day. On this day Tan Sri Hasmy Agam, a retired career diplomat who has often defended Malaysia on the international scene, spoke at a Suhakam/UN event in Kuala Lumpur. He said Suhakam would urge the government to ratify all core UN instruments. He also said Suhakam will meet with Malaysian stakeholders to discuss the UPR. The list of invitees will include MuslimUPRo.

On 15 December, Berita Minggu published an article by Azril Mohd Amin, who led MuslimUPro, a coalition of Muslim NGOs, to the UPR process in Geneva; Azril is also vice president of Malaysia’s Muslim Lawyers Association.

Titled “Cabaran meratifikasi konvensyen hak asasi manusia sejagat” (“The Challenge to ratify Universal Human Rights Conventions”), the article names Hasmy Agam, Saifuddin and Proham.

We will not rehearse what the article says about them. It is enough to note that Hasmy was appointed by the Yang di Pertuan Agung; Saifuddin was appointed by Prime Minister Datuk Seri Najib Tun Razak and Proham is composed of persons who had been appointed Human Rights Commissioners by careful processes.

The article, seemingly speaking for Muslims in Malaysia, says nothing of the fact that the official Malaysian delegation to the first UPR in 2008 had about 100 members, whilst the second, in 2013 had 36 members. A majority of the official delegates were Muslims.

The article says nothing about Malaysia courting the UN – all our Prime Ministers, all of them Muslims, have taken the UN seriously: our current Prime Minister announced the creation of the GMMF in a speech to the United Nations. GMMF’s goal is to demonstrate to the world how wasattiah (“justly balanced moderation”) can be applied to promote world peace; our diplomats are hard at work to get us a seat on the UN Security Council.

The article fails to acknowledge the wider diplomatic picture, and fails to take into account what 104 nations – including 34 Muslim-majority nations – said. It’s easy to dismiss it as mere ranting. Yet, it’s worth engaging, because it offers an opportunity to examine some common arguments against ratification.

(a) Argument # 1: We have done much to ensure that Malaysians enjoy a high standard of human rights; therefore we don’t need external standards.

If we have such great enjoyment of human rights, why are Penans protesting the loss of their land? Why do we have deaths in custody? Why do our policemen and prison wardens work in such filthy, degraded conditions? Why do Indonesia and Bangladesh ask us to improve our treatment of their nationals who work here?

Should we also say that airplanes and drugs developed or used in Malaysia don’t need to be subject to international standards?

Just as all decent businesses sign-up to standards and invite third parties to audit them, many countries do the same. So should we. We should state our aspirations and welcome scrutiny, so that we can be world leaders, not mere followers.

(b) Argument # 2: The number of instruments signed by a nation is not a sufficient measure of the enjoyment of human rights in that nation.

This ‘argument’ is what logicians call a straw-man: saying something which no one is saying, and then cutting it to shreds with sharp arguments.

The fact that we have a law doesn’t necessarily mean we apply it. Just consider how few are prosecuted for giving and receiving bribes in Malaysia, though we acknowledge corruption is a major problem: we even have billboards about corruption in the arrival hall at Kuala Lumpur International Airport.

Ratification is a commitment to an aspiration and a process of improvement, not proof of excellence.

(c) Argument # 3: The ranking of countries according to how many instruments they have signed has no value.

As argued in (b) above, the ranking shows aspiration. Isn’t it worth knowing whether a country aspires to achieve at least a “minimum standard?”

Since the instruments are the result of consensus, and reservations can be placed on selected requirements within each instrument, it’s clear that those who rank low are those who don’t aspire to be better.

In Geneva we as a nation impressed our peers with our presentation of the Government and Economic Transformation Programmes. Many of the measures used in these programmes are ranking-based. Why would we not do the same for nations?

(d) Argument # 4: Proponents of ratification should not appeal to ratification by Muslim-majority nations as an encouragement for ratification by Malaysia.

The article claims, with no data, that Muslim majority nations which ratified the instruments did so under pressure of defeat in war. Research on UN websites shows that Egypt has ratified 8 instruments. The first (on racial discrimination) was ratified on 01 May 1967: before Israel attacked Egypt on 05 June 1967. The next instrument to be ratified (on discrimination against women) was on 18 Sep 1981.

Over the decades, whenever the Egyptian government persecuted protesters, nations and NGOs from around the world appealed to the ratified instruments to seek justice for the persecuted.

Through the UN website, it is easy to confirm that many Muslim-majority nations continue to ratify instruments. In October, 22 OIC (Organization for Islamic Cooperation) members told Malaysia to ratify the instruments.

The article says ‘unqualified’ persons represented Muslim-majority nations in the drafting of some conventions. This is barely significant, since numerous Muslim-majority nations participated. Furthermore, ‘decisions’ are not made by any individual representative; rather he/she brings to the drafting process the consensus decisions from each nation, made with appropriate stakeholders, over time.

The article fails to notice the pressure placed on countries like Argentina, Chile and Israel to ratify the instruments so that we can demand rights for the persecuted on the basis of the instruments – and appeal to the same instruments as peacekeepers.

How can we ask others to respect instruments if we ourselves refuse to ratify them?

(e)  Argument # 5: The UDHR (Universal Declaration of Human Rights) is the work of secular-liberal ideologists; since it doesn’t mention God, it must be rejected.

Mention of the UDHR is surprising, as it is not one of the core instruments.

Except for religious textbooks, all textbooks used in schools do not mention God. Does this mean we should reject them?

We close with a few general comments.

When discussing calls by Malaysians to ratify core UN instruments, it’s important to state “7 additional” because we have ratified 3 of the instruments.

In 1995 we ratified the 1979 Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). In 2010 we ratified the 2006 Convention on the Rights of Persons with Disabilities (CRPD). Indeed, the October 2013 UPR, noted that we have removed some reservations we had previously placed on some requirements in the instruments.

When discussing any instrument, it’s important to recognize that the process of ratification allows for reservations: “ratification legally binds a State to implement the Convention and/or Optional Protocol, subject to valid reservations, understandings and declarations.”  When we place a reservation on any provision in an instrument, we are stating up-front that, for the time being, we do not acknowledge that provision as legally binding upon us – many nations do this.

When discussing any instrument, it’s important to state the date of the instrument because the date helps us assess the time available to study each instrument and consult all local stakeholders before ratifying it. Of the instruments Malaysia has not ratified, the oldest was adopted by the UN 48 years ago.

Note: The UN uses the term “instrument” partly because the titles of some of the core documents say “convention,” while others say “covenant.” The term “instrument” is descriptive, because it’s a tool for announcing, implementing and maintaining change.

When discussing any instrument, it’s important to recognize that saying a nation has ratified an instrument doesn’t mean it has achieved “a high standard.” It merely means the nation has discussed human rights, come to certain decisions, and intends to assure that it’s not mere talk. It signals that the nation takes seriously its membership of the United Nations and is worthy of being given a place at the table when decisions of international significance are made.

As Malaysians, let us respect the sincerity of co-religionists as well as those of other faiths; be fact-based; and recognize that we are players on the world stage.