Human Rights Watch further raised concerns about Malaysia's preventive detention laws such as the Internal Security Act 1960 and Emergency (Public Order and Prevention of Crime) Ordinance 1969 and urged Malaysia to order start "a time-bound process to repeal those laws."
By DAVID D. MATHEW, MySinchew
On May 13, Malaysia will bid for a place on the 47-seat United Nations Human Rights Council. With Iran rightly withdrawing its candidacy, only Malaysia, Qatar, Thailand and Maldives now vie for the four places available in the Asia Group.
As there are now only four candidates for four seats, Malaysia's candidacy will be successful is she is able to obtain a majority of 97 votes from amongst the 192 members of the General Assembly.
The United Nations General Assembly Resolution A/RES/60/251 which established the Council makes it clear that the Council shall be responsible for promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.
Resolution A/RES/60/251 also makes it very clear that members elected to the Council shall uphold the highest standards in the promotion and protection of human rights.
With its miserable human rights record, Iran's initial candidacy was heavily criticized and seen as a provocative act by Tehran.
Similarly, Malaysia's candidacy has also not escaped criticism.
In a letter to the Prime Minister of April 27, Human Rights Watch stated that Malaysia should urgently adopt human rights reforms to justify its candidacy for the Council.
In this regard, Phil Robertson who is the deputy Asia director at Human Rights Watch said that "the government should act swiftly to reform its laws, policies, and practices to show it respects the human rights of all the people in Malaysia. We don't want to see a repeat of 2006, when Malaysia made a series of promises while seeking a seat, then broke them all."
Human Rights Watch also called on the government to revise or repeal, laws restricting the rights to freedom of association, assembly, and expression such as Printing Presses and Publications Act 1984, which requires annual licensing of publications and provisions of the Police Act 1967 that require a permit for any gathering of three or more persons.
Both of these acts are an affront and an insult not only to international human rights norms but also to Part II of Malaysia's Federal Constitution which guarantee the freedom of speech and assembly.
Human Rights Watch further raised concerns about Malaysia's preventive detention laws such as the Internal Security Act 1960 and Emergency (Public Order and Prevention of Crime) Ordinance 1969 and urged Malaysia to order start "a time-bound process to repeal those laws."
These however, are not the only issues that puts Malaysia's candidacy in question.
On Monday, the Federal Court of Malaysia was due to hear a Constitutional reference from the Court of Appeal in the Shamala case. Here the issue was whether a father who had converted to Islam had the right to convert the children of the marriage without first obtaining permission or consulting the Hindu mother.
The issue involves Article 12 (4) of the Federal Constitution which states that "the religion of a person under the age of eighteen years shall be decided by his parent or guardian."
The use of the word "parent" in Article 12 (4) should naturally be read in the plural given the fact that if it is read in the singular, there will be an infringement of the Article 8 guarantee of equality of rights. There is also Section 2(95) of the 11th Schedule to the Federal Constitution which states that "words in the singular include the plural."
If this approach is taken, then any act of one parent to unilaterally convert the children of the marriage would be unconstitutional. Unfortunately, there is still some confusion over the term "parent" and the position has been taken that one parent may lawfully convert a child.
The Federal Court has however delayed resolving the issue pending its decision on an objection taken by the father that because the two children were believed to have left the country with their mother and were beyond the reach of the court, any pronouncement by the apex court would be of no value.
The Constitutional issue in Shamala's case must be seen beyond the smaller issue of whether the wife and children should be present in the country before the matter is heard by the Federal Court.
A pronouncement by the Federal Court that there can be no unilateral conversion of a child would solve so many other outstanding cases involving the same issue including the Indira Ghandi case in Ipoh.
It would also go a long way towards validating Malaysia's commitment as a signatory to the Convention on the Rights of the Child. Article 18 of the said Convention states that "state parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child."
Anything less from the Federal Court would put into question Malaysia's commitment towards human rights and its candidacy for a seat on the Council.
In fact, the Federal Court should take note of the Universal Periodic Review on Malaysia dated October 5, 2009. Universal Periodic Reviews is an examination of the human rights records of all 192 UN Member States carried out once every four years by the Council.
In paragraph 104 of Malaysia's review, it is stated that Malaysia supports the recommendation that it "continue to spearhead progress towards gender equality and development for women, in particular by giving due consideration to the recommendations of the Inter-agency Committee coordinated by the Ministry of Women, Family and Development regarding the compliance of Malaysia with the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women and the withdrawal of its reservations to both conventions."
As a matter of note, Malaysia was represented at the review by, among others, Tan Sri Rastam Mohd Isa, Secretary-General, Ministry of Foreign Affairs and the Attorney General, Tan Sri Abdul Gani Patail.
In order to validate its right to sit on the Council, the Malaysian Government and its courts and all other relevant national agencies would have to urgently ensure full compliance and application of the guarantees contained in the Federal Constitution as well as all other accepted international human right norms.
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