Honey Tan Lay Ean (EMPOWER/COMANGO)
Masjaliza Hamzah (Centre for Independent Journalism/COMANGO)
Jerald Joseph (Pusat KOMAS/COMANGO)
Mark Bujang (JOAS)
Andrew Khoo (Bar Council Human Rights Committee)
25 October 2013
The Coalition of Malaysian NGOs for the UPR Process (COMANGO), Jaringan Orang Asal SeMalaysia (JOAS) and the Bar Council through its Human Rights Committee concur with Dato’ Ho May Yong, Deputy Secretary-General, Multilateral Affairs, Ministry of Foreign Affairs, and head of the government delegation to the Universal Periodic Review of Malaysia: much more attention and action is needed on human rights in Malaysia.
At the 2nd Universal Periodic Review of Malaysia, which was carried out at the United Nations Human Rights Council in Geneva, Switzerland on 24 October 2013, 104 countries participated in the interactive session with Malaysia by making comments, asking questions and raising recommendations. Noting the low rate of accession by Malaysia, many countries encouraged the Malaysian government to accede to the six other core international human rights conventions that we have yet to sign and introduce and implement domestic legislation, apart from the three that we have already signed. Even with respect to the three international human rights conventions that Malaysia had signed, recommendations were for Malaysia to remove the various reservations that had been made. Malaysia was also asked to be specific and stipulate a definite timeline for these accessions. Additionally, Malaysia was asked to sign up to the Rome Statute of the International Criminal Court. It should be noted that Malaysia announced in April 2011 that it would sign the Rome Statute, but until now no progress has been publicly made known.
In our view it will not be easy for the government to ignore these recommendations, as they did not come just from Western countries, but also from other countries in Asia, from Africa and Latin America. Muslim countries such as Egypt, Maldives, Tunisia and Turkey also made this call, obviously seeing no threat to Islam in doing so, in contrast to views from certain Malaysian Muslim NGOs.
The Malaysian government sought to contextualise improvement in human rights in Malaysia by referring to the Government Transformation Programme, Economic Transformation Agreement and National Key Results Areas, preferring to stress its achievements in furthering economic human rights and a higher standard of living. Even so, many countries called for Malaysia to continue its efforts to reduce income inequalities, education opportunities, teacher training and gender sensitivity.
Noteworthy too were recommendations by a wide cross-section of countries to improve the situation of trafficking in persons and welfare of victims of trafficking, better access to healthcare and education for poor and marginalised communities and groups including persons with disability, and safeguarding the various rights and interests of indigenous peoples. Developing nations that are source countries of migrant labour in Malaysia, including some of our ASEAN neighbours, spoke on the need for Malaysia to better protect migrant workers and strengthen their access to justice, signaling their concern for the safety and security of their citizens in Malaysia and their ability to obtain legal remedies for their complaints. The government was also urged to do more to safeguard refugees and asylum seekers, and to prevent statelessness. This includes signing up to the 1951 Convention on Refugees and its 1967 Protocol, which again Malaysia has steadfastly refused to.
Good recommendations also came from Maldives, which asked Malaysia to look into the situation of female genital mutilation and not to categorise it as a medical procedure. Japan, a major source of foreign direct investment in Malaysia, spoke on the need for Malaysia to promote Internet freedom, freedom of expression and freedom of assembly. It also raised concerns about fair trial procedures in Malaysia and delays by Malaysia in making reports to the United Nations treaty body on women.
The Malaysian delegation sought to address concerns relating to recent developments in Malaysia, such as the reintroduction of detention without trial, the “Allah” decision, and issues relating to Orang Asal. The Malaysian government’s position was that none of their actions violated Malaysian law, and that even where they were in conflict with international human rights norms, these were justified by specific circumstances and situations. The government also claimed that they had facilitated public assemblies, and gave as an example the post-election rally at Kelana Jaya stadium on 8 May 2013. As anyone who attended or tried to get to Kelana Jaya stadium that night will know, this is patently untrue.
The government’s national report highlighted Prime Minister Najib Razak’s “sweeping democratic reforms” in his eve of Malaysia Day 2011 speech. However several countries noted that since then, some of the advances in removing oppressive legislation have been rolled back, raising serious questions about the sincerity and sustainability of those reforms. The government was hard pressed to assure the international community there was no backpedalling on improvement to human rights, especially on the issue of detention without trial, recent amendments to the Prevention of Crime Act 1959, restrictions on freedom of assembly and freedom of expression.
Even on the issue of freedom of religion and the “Allah” issue, we note that several countries asked Malaysia to look more closely into this. Iran recommended that Malaysia combat discrimination against religious minorities. Austria also specifically asked Malaysia to promote dialogues with religious minorities, to respect the right of non-Muslim religions and also the right of Muslims to change their religion. Canada recommended that Malaysians be allowed to worship in peace and security without disturbance, and to recognize freedom of religion and belief among both mainstream and minority faith groups. Italy asked Malaysia to revise its legislation to ensure freedom of religion or belief.
On indigenous people rights, both the Jabatan Kemajuan Orang Asli and Sarawak state government, whose representatives addressed the meeting, justified that they were taking care of indigenous peoples in that their development plans would bring greater good to the community and country as a whole. However JOAS states that the principles of free, prior and informed consent under the United Nations Declaration on the Rights of Indigenous Peoples is often not complied with when implementing development programmes. If all was well with indigenous peoples, especially in Sarawak, why were Orang Asal affected by the Bakun and Murum dam projects protesting?
On freedom of expression, we urge the government to accept recommendationsd by the United Kingdom, Australia and the United States to repeal the Sedition Act 1948. We also support the call by Ireland, Japan, Austria, Czech Republic, Poland and Hungary to repeal or amend or revise the Printing Presses and Publications Act 1984 and the Official Secrets Act 1972, which have had a negative impact on freedom of expression, and to bring them in line with human rights standards. The latest amendment of the introduction of Section 203A of the Penal Code occurred too soon to have been picked up during the review, but was raised by COMANGO and the Bar Council in their meetings with permanent missions. Denmark made a specific reference to amending Section 114A of the Evidence Act 1950 to remove the presumption in relation to Internet and other electronic media postings.
There was a good cross-section of countries that called for a moratorium on the use of the death penalty leading towards its abolition, and an end to mandatory death sentences in general, and for drug-related offences in particular. We share the concerns raised by the Netherlands regarding police conduct and the use of torture, and echo New Zealand’s recommendation for the setting up of an Independent Police Complaints and Misconduct Commission.
There was also a good cross-section of countries calling on Malaysia to do more to prevent violence against women, including recommendations by Canada, Chile and Italy to criminalise marital rape. We urge the government to accept these recommendations and take steps to remove the exception in Section 375 of the Penal Code. The improved role and status of women, especially in decision-making, and calls for an end to child and enforced marriages and more legal equality of Muslim women under Syariah law, were made. The Jabatan Kemajuan Islam Malaysia attempted to address the last concern, but gave examples of equality that did not actually deal with the issues raised in stakeholder submissions.
Not unexpectedly, there were calls by several countries to decriminalise sexual conduct between consenting same-sex couples, and to stop discrimination and maltreatment of lesbian, gay, bisexual and transgender persons.
Clearly there is a wide range of issues that Malaysia must address. One thread running through many of the recommendations made was the need for Malaysia to engage more with international human rights mechanisms, including the system of special procedures and special rapporteurs. Malaysia to-date has refused to extend a standing invitation to these special procedures and special rapporteurs Security Council, preferring to be cautious and issue selective invitations. As a current member of the Human Rights Council, Malaysia’s rate of cooperation with the special procedures and special rapporteurs, and its accession rate of international human rights instruments, leaves much to be desired. And although Malaysia steps down as a member of the Human Rights Council at the end of this year, it has announced that it is seeking election to the United Nations Security Council for the 2015-2017 term, and elections will take place in October 2014.
In our view, Malaysia needs to be far more convincing that it is committed to the international system of law and order premised on acceptance of and compliance with international human rights norms and standards. If Malaysia wants to be active in the front yard of the international geopolitical scene, it must do more than make an outward show of professing, promoting and protecting human rights in its own backyard.