Proposals by Human Rights NGOs for Amendments to the Human Rights Commission of Malaysia Act

SUARA RAKYAT MALAYSIA

Address: 433A, Jalan 5/46, Gasing Indah, 46000 Petaling Jaya, Selangor, Malaysia.

Telephone: +6 03 7784 3525 Fax: +6 03 7784 3526

Email: suaram@suaram.net Web: www.suaram.net

1 July 2009

Datuk Seri Mohamed Nazri Abdul Aziz

Minister in the Prime Minister’s Department

15^th Floor, Parliament, Jalan Parlimen, 50680, Kuala Lumpur

Fax: 03-20781719

Re: Proposals by Human Rights NGOs for Amendments to the Human Rights Commission of Malaysia Act

Dear Sir,

We are writing to you to express our concerns over the Human Rights Commission of Malaysia (Amendments) Bill 2009 which was tabled for the first reading on 22 June 2009. We are of the view that these amendments are inadequate to ensure better compliance of the Human Rights Commission of Malaysia (SUHAKAM) with the Paris Principles.

We, Suara Rakyat Malaysia (SUARAM) and Education and Research Association for Consumers Malaysia (ERA Consumer) – two Malaysian human rights NGOs, therefore propose a set of amendments to the Human Rights Commission of Malaysia Act 1999 (Act 597) in the document attached to this letter.

Dear Sir,

In March 2009, following up with its earlier recommendations of April 2008, the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) once again found that further improvements need to be made to Act 597. The following recommendations were made by the ICC:

1. Although the appointment process has been strengthened by the recent legislative amendments, the ICC Sub-Committee on Accreditation expresses its disappointment that the amendments do not make the process more transparent through a requirement for broad based participation in the nomination, review, and selection of Commissioners. The ICC Sub-Committee on Accreditation notes that this process may be further strengthened through inclusion and participation of civil society.
2. The ICC Sub-Committee on Accreditation expresses its concern with regard to the inclusion of performance indicators, as established by the Prime Minister, used in relation to re-appointment or dismissal decisions. While acknowledging the value of such indicators in making clear the expectations of Commissioners, it stresses that such requirements must be clearly established; appropriately circumscribed, so as not to interfere in the independence of members; and made public.
3. While acknowledging SUHAKAM’s interaction with the International Human Rights System, the ICC Sub-Committee on Accreditation stresses the need for SUHAKAM to continue to promote ratification and implementation of international human rights instruments.

We would like to point out that the Human Rights Commission of Malaysia (Amendments) Bill 2009 addresses only the issue of appointment of Commissioners. The issue of appointment process is merely one of the several latest recommendations made by the ICC in March 2009.

Further, we are of the view that the proposed amendments to Section 11A in the Human Rights Commission of Malaysia (Amendments) Bill 2009 could further be strengthened by ensuring a wide and transparent consultation with civil society in the process. This is not reflected in the latest bill of amendments. It is thus inadequate in addressing all the concerns raised by the ICC.

We therefore propose the following:

1. Concerns with regard to SUHAKAM’s appointment process

With regard to the concerns relating to SUHAKAM’s appointment process, we propose amendments to Section 5(2) to that the process is more transparent and inclusive. We propose the following amendments in bold:

Amendment to Section 5(2)

Members of the Commission shall be appointed by the Yang di-Pertuan Agong, on the recommendation of the Parliament from the list of candidates recommended by the committee referred to in section 11A.

Amendments to Section 11A

11A. (1) For the purpose of section 5, there is established a committee consisting of the following persons:

(a) The Prime Minister who shall be the Chairman;

(b) The Minister in charge of human rights;

(c) The Chairman of the Commission;

(d) The leader of the Opposition in the House of Representatives; and

(e) Three other members, to be appointed by Parliament from amongst persons who have special knowledge, experience, expertise and professionalism in matters relating to human rights, law, public or social services.

Insertion of Subsection 6 under Section 11A

Under Section 11A, we propose the insertion of the following Subsection 6 to ensure a greater level of inclusion and participation of civil society in the appointment process of SUHAKAM commissioners:

(6) The Committee shall –

(a) upon wide and transparent consultation with non-governmental organisations, international bodies and individual members of the public who are involved in promoting human rights which shall include a process for public nomination of candidates, recommend to Parliament the men and women who shall be appointed as Commissioners;

(b) without affecting the independence of the Commission, advise the Commission in relation to the performance of their functions and duties under this Act.

2. Concerns with regard to the inclusion of performance indicators

In view of the ICC’s second concern with regard to the inclusion of performance indicators, we propose that Section 5(5) and (6) be amended. We propose the following amendments in bold:

Amendments to Section 5(5) and (6)

(5) The Parliament shall determine suitable mechanisms, including appropriate key performance indicators, which shall be made public, to assess the performance of the members of the Commission in carrying out their functions and duties under this Act.

(6) Such assessment shall be taken into consideration by Parliament in recommending (a) the reappointment of any member of the Commission under subsection (4); and

(b) the removal of any member of the Commission under section 10.

3. Concerns with regard to SUHAKAM’s work in promoting ratification and implementation of international human rights instruments

Since the publication of its first annual report in 2001, SUHAKAM has been making recommendations to the government to ratify all core international human rights treaties. However, these recommendations has, to date, not been acted upon by the government. This has resulted in the ICC’s concerns with regard to SUHAKAM’s work in this area.

We therefore propose that Section 21 of Act 597 be amended to ensure better implementation and follow-ups on SUHAKAM’s recommendations. The following are our proposed amendments in bold:

Amendments to Section 21

21. (1) The Commission shall not later than the first meeting of Parliament of the following year, submit an annual report to Parliament of all its activities during the year to which the report relates for debate.

(2) The report shall contain a list of all matters referred to it, and the action taken in respect of them together with the recommendations of the Commission in respect of each matter and shall be made available to the public.

(3) The Commission may, whenever it considers it necessary to do so, submit special reports to Parliament in respect of any particular matter or matters refereed to it, and the action taken in respect thereof.

(4) The Minister shall cause a copy of every report furnished to the Minister under this Part to be laid before each House of Parliament within 15 sitting days of that House after the report is received by the Minister.

(5) Parliament shall take appropriate and desirable action to give effect to the recommendations of the Commission.

Other areas of concern

Besides these concerns of the ICC, civil society groups have also noted several other areas in the enabling law of SUHAKAM where further improvements can be made. These include:

1. Full-time commissioners

The ICC in a general recommendation in April 2008 had noted, “Members of the NHRIs should include full-time remunerated members […].” We note with utmost concern that SUHAKAM is the only NHRI in the ASEAN region whose commissioners are not full-time. We therefore propose the following amendments in bold:

Amendment to Section 5(1)

5. (1) The Commission shall consist of not more than twenty members who shall hold such office full-time.

2. Wider mandate and powers

Civil society groups have also expressed concerns over the lack of powers and mandate given to SUHAKAM. We also note that during the Universal Periodic Review (UPR) on Malaysia by the UN Human Rights Council in February 2009, recommendations were made by several countries for the Malaysian government to provide SUHAKAM with wider mandate and powers. In view of these, we propose the following amendments in bold:

Amendment to Section 2

"human rights" refers to fundamental liberties as enshrined in the Federal Constitution, rights embodied in the International Covenants, Conventions and Treaties to which Malaysia is a party and customary international law.

Amendment to Section 4(1)(b)

(b) to advise and assist the Government in formulating legislation and administrative directives and procedures and recommend the necessary measures to be taken and to this extent, a copy of the relevant legislation or administrative directives or proposed legislation or administrative directives shall be made available to the Commission promptly on its request by the relevant Minister, Menteri Besar or Chief Minister.

Insertion of Paragraph (ba) under Section 4(1)

(ba) to monitor Government compliance with human rights, to monitor and review the laws and its implementation for the purposes of identifying contraventions of this Act and to advise the Minister responsible for administering that provision or Act as soon as practicable.

Amendment to Section 4(3)

(3) The visit by the Commission to any place of detention under paragraph (2)(d) may be made without notice and shall not be refused by the person in charge of such place of detention.

Insertion of Subsection 3A under Section 4

(3A) In discharging its functions, the Commission shall act in a way which it considers most appropriate with a view to promoting human rights in general terms and in relation to particular cases

and having regard to –

(i) The Federal Constitution;

(ii) the international obligations of Malaysia in the field of human rights;

(iii) public interest; and

(iv) independence of the Commission.

Amendment to Section 4(4)

(4) This Act, shall be construed in accordance with the provisions of the Universal Declaration of Human Rights 1948, International Covenants, Conventions and Treaties to which Malaysia is a party and customary international law to the extent that it is not inconsistent with the Federal Constitution.

These are but some of our proposals for amendments to Act 597. (We attach with this letter the full proposal for amendments to Act 597.)

With these proposals, we urge the government to withdraw the Human Rights Commission of Malaysia (Amendments) Bill 2009 which was tabled in the Lower House of Parliament on 22 June 2009, as the bill once again does not fully address the concerns of the ICC. Should the ICC find the amendments inadequate, SUHAKAM will most definitely be downgraded to ‘B’ status – a serious blow to Malaysia’s standing in the international human rights community.

We would like to remind you that in Malaysia’s Aide-Memoire on its candidature to the UN Human Rights Council in 2006, the government unequivocally stated that its commitment to human rights is demonstrated by the establishment of SUHAKAM. This was reiterated in the Malaysian government’s report to the UN Human Rights Council for the UPR in 2009.

We hope that the government will seriously take into consideration these proposals to ensure that SUHAKAM does not get downgraded by the ICC and to uphold Malaysia’s commitment to the protection and promotion of human rights.

We thank you for your attention.

Yours truly,

John Liu

Coordinator

SUARAM

For further information, please contact John Liu of SUARAM by telephone at +60377843525 or +60377835724, fax at +60377843526, or email at suaram@suaram.net.

CC:

1. Leader of the Opposition

Office of Leader of the Opposition

14th Floor, Parliament, Jalan Parlimen, 50680 Kuala Lumpur

Fax: 03-26932529

2. Chairman of SUHAKAM

SUHAKAM

Level 29, Menara Tun Razak, Jalan Raja Laut, 50350 Kuala Lumpur

Fax: 03-26125620