Mr. David Langtry
ICC Sub-Committee on Accreditation
c/o National Institutions Unit
Office of the High Commissioner on Human Rights
Geneva , Switzerland .
Dear Mr. Langtry,
We are writing to you regarding the Sub-Committee on Accreditation’s review on the Human Rights Commission of Malaysia (SUHAKAM), especially in view of the recently-passed amendments to its enabling law, the Human Rights Commission Act 1999.
We call on the Sub-Committee, in making its decision on its review on SUHAKAM, to take into account the fact that the amendments to the Human Rights Commission of Malaysia Act 1999 were made without any consultation whatsoever with civil society, and are superficial in nature and fail to address some of the most important issues raised by the Sub-Committee in April 2008. (We attach with this letter, below, a comparison between the newly-amended provisions and the original provisions of the Human Rights Commission of Malaysia Act 1999.)
We voice our deepest concerns at this critical juncture just as SUHAKAM is being reviewed, as we strongly feel that should SUHAKAM be retained “A” status, it will give legitimacy to the actions of the government of Malaysia in bulldozing through the amendments without any consultation whatsoever with stakeholders, including civil society, and also to the superficial nature of the amendments. We would like to state categorically that the amendments are mainly cosmetic and do not contribute to the improvement of SUHAKAM’s independence as a national human rights institution (NHRI).
The superficial nature of the amendments can be illustrated, for instance, by the newly-amended Section 5(2) of the Human Rights Commission Act 1999, which provides that the Commission shall be appointed by the Yang di-Pertuan Agong (King) on the recommendation of the Prime Minister, who shall now, before tendering his advice, consult the committee referred to in Section 11(A).
Section 11(A) provides for the composition of the select committee which comprises of the following persons:
a) The Chief Secretary to the Government who shall be the Chairman;
b) The Chairman of the Commission; and
c) Three other members, from amongst eminent persons to be appointed by the Prime Minister.
Firstly, we would like to point out that these amendments do not address the Sub-Committee’s recommendations to SUHAKAM that it strengthens its independence by the “provision of clear and transparent appointment and dismissal process”. Under the newly-inserted Section 11(A)(6), the views or recommendations of the selection committee as stated above shall not be binding upon the Prime Minister. This, in reality, gives the Prime Minister absolute discretion over the selection of members of the Commission. This demonstrates the fact that the amendments retain the essence of the original provisions of the Act, where members of the Commission are appointed by the King on the recommendation of the Prime Minister. In reality, the appointment process of SUHAKAM under the new amendments still lacks transparency and certainly does not address the specific recommendation made by the Sub-Committee.
Secondly, the amendments above also do not address the other specific recommendation of the Sub-Committee to SUHAKAM to ensure “the representation of different segments of society and their involvement in suggesting or recommending candidates to the governing body of the Commission”. Under the new amendments, there is still no provision which ensures the engagement and participation of civil society in the selection process of SUHAKAM, despite the Paris Principles clearly stating that “whether by means of election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of social forces (of civilian society) involved in the promotion and protection of human rights”.
Even after the amendments, the selection process of SUHAKAM remains solely determined by the Prime Minister.
During the Universal Periodic Review (UPR) on Malaysia in February 2009, recommendations of at least four countries, to ensure the independence of SUHAKAM in accordance with the Paris Principles and also to widen the scope of SUHAKAM to cover all rights in the Universal Declaration of Human Rights, were merely noted by the government of Malaysia, and were not listed as those which enjoyed its support. This is a clear demonstration of the lack of commitment of the government of Malaysia in strengthening and improving SUHAKAM.
That the government chose only to make the amendments one day prior to the Sub-Committee meeting to review on SUHAKAM is convened speaks volumes about the level of commitment of the government of Malaysia concerning its NHRI. It clearly shows that these amendments were made not with the intention to improve SUHAKAM, but merely to save it from being downgraded. The government of Malaysia ’s superficial actions, especially with regard to matters of utmost importance and seriousness, such as in ensuring the independence of an NHRI, therefore, are unacceptable.
It is also worthwhile to point out here that the minister who tabled the hurriedly-passed bill of amendments to the enabling law of SUHAKAM on 24 March 2009 was the very same minister who, in March 2006, said that the government “had never planned to give SUHAKAM any teeth” when questioned in the Parliament about the effectiveness of SUHAKAM as an NHRI in Malaysia.
Taken into account all of the above, we are of the view that SUHAKAM does not deserve the “A” status, as it is still not in full compliance with the Paris Principles despite the amendments made to its enabling law. We are of the view that the Sub-Committee’s review on any NHRI should be done solely based on its compliance with the Paris Principles, and not based on relative efforts or improvements. The implications of maintaining the “A” status of SUHAKAM based on these superficial amendments are grave – the Malaysian government’s non-inclusive, superficial, and hasty efforts to save its NHRI, which still did not result in a greater compliance with the Paris Principles, would be legitimised, making it extremely difficult to push forward more substantial reforms on SUHAKAM in the future.
Thus, we strongly urge you to take these points into consideration in the decision of the Sub-Committee’s review on SUHAKAM.
We also strongly call on the Sub-Committee to make the following recommendations in the report of its review on SUHAKAM:
1. The selection process of the Commission should be further improved to make it more transparent and clear. This can be done by ensuring the representation of civil society in suggesting and recommending candidates to the Commission. We recommend that the representation of civil society in this process be spelt out clearly in the enabling law.
2. We also refer to the Sub-Committee’s report in April 2008, which noted, “Members of the NHRIs should include full-time remunerated members […].” We note with concern the part-time nature of the commissioners’ work and recommend that members of the Commission be full-time.
3. Recognising similar concerns which were raised during Malaysia ’s UPR on 11 February 2009 , we recommend that the Commission’s mandate be widened to include all rights in the Universal Declaration of Human Rights.
We thank you for your attention.
This letter is signed by the following Malaysian civil society organisations:
1. Aliran Kesedaran Negara (ALIRAN)
2. All Women’s Action Society (AWAM)
3. Amnesty International, Malaysia
4. Centre for Independent Journalism (CIJ)
5. Centre for Orang Asli Concerns (COAC)
6. Child Development Initiative
7. Citizens Think Tank
8. Civil Right Committee, Kuala Lumpur & Selangor Chinese Assembly Hall
9. Civil Society Initiative (CSI)
10. Coalition against Water Privatisation
11. Community Development Centre (CDC)
12. Consumer Association of Klang (CAK)
13. Coordination of Action for Research on AIDS and Mobility (CARAM Asia )
14. Education and Research Association for Consumers, Malaysia (ERA Consumer)
15. Federation of Malaysian Consumers Association (FOMCA)
16. Group of Concerned Citizens
17. Jamah Islah Malaysia (JIM)
18. Jaringan Rakyat Tertindas (JERIT)
19. Kumpulan ACTS (A Call to Serve)
20. LLG Foundation – Civil Society Promotion Committee
21. Malaysia Youth and Students Democratic Movement (DEMA)
22. Malaysian Association of Standards Users
23. Malaysian Indian Development Association
24. Monitoring Sustainability of Globalization (MSN)
25. Nur Salam
26. Pahang Consumers’ Association
27. Penang Consumers’ Protection Association (PCPA)
28. Penang Watch
29. Perak Consumers’ Association (PCA)
30. Persatuan Kesedaran Komuniti Selangor (Empower)
31. Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)
32. PT Foundation
33. Pusat Khidmat Pekerja Tanjung (PKPT)
34. Pusat Komunikasi Masyarakat (KOMAS)
35. Research for Social Advancement (REFSA)
36. Save Our Selves (SOS)
37. Selangor & Wilayah Persekutuan Consumers’ Association (SCA)
38. Semparuthi Iyakkam
39. Sisters in Islam (SIS)
40. Suara Rakyat Malaysia (SUARAM)
41. Tamil Youth Bell Club
43. Women’s Aid Organisation (WAO)
44. Workers’ Organisation Malaysia
45. Writers’ Alliance for Media Independence (WAMI)
46. Youth for Change (Y4C)
This letter is also supported by the Asian NGOs Network on National Institutions (ANNI). The following are members of ANNI:
1. ADVAR – Iran
2. Ain o Salish Kendra (ASK) – Bangladesh
3. Asian Center for Human Rights (ACHR)
4. Asian Forum for Human Rights and Development (FORUM-ASIA)
5. Cambodian League for Promotion and Defence of Human Rights (LICADHO)
6. Center for Human Rights and Development (CHRD) – Mongolia
7. Center for Organizing Research and Education (CORE)
8. Citizens’ Council for Human Rights Japan (CCHRJ) – Japan
9. Commission for Disappearances and Victims of Violence (KONTRAS) – Indonesia
10. Defenders of Human Rights Center – Iran
11. Education and Research Association for Consumer Education (ERA Consumer) – Malaysia
12. Hong Kong Human Rights Monitor (HKHR) – Hong Kong
13. Human Rights Organisation of Kurdistan
14. Indonesian Human Rights Monitor (IMPARSIAL) – Indonesia
15. Indonesian NGO Coalition for International Human Rights Advocacy (HRWG) – Indonesia
16. Informal Service Sector Center (INSEC) – Nepal
17. Institute for Policy Research and Advocacy (ELSAM) – Indonesia
18. International Campaign for Human Rights in Iran – Iran
19. Japan Federation of Bar Associations (JFBA) – Japan
20. Judicial System Monitoring Program (JSMP) – Timor Leste
21. Korea House for International Solidarity (KHIS) – Korea
22. Law and Society Trust (LST) – Sri Lanka
23. Lawyers’ League for Liberty (LIBERTAS) – Philippines
24. Maldivian Detainees Network (MDN) – Maldives
25. People’s Watch – India
26. Philippine Alliance of Human Rights Advocates (PAHRA) – Philippines
27. Suara Rakyat Malaysia (SUARAM) – Malaysia
28. Taiwan Association for Human Rights (TAHR) – Taiwan