Human rights: what's stopping Malaysia?

The Nut Graph

by Elizabeth Looi and Shanon Shah

“MALAYSIA has only signed two out of the eight core international human rights treaties,” says Alice Nah, National Human Rights Society (Hakam) executive committee member.

“As time goes on, however, Malaysia's reluctance to sign these treaties will become more untenable, particularly if it wants to be a recognised and respected member of the United Nations (UN),” she tells The Nut Graph in an e-mail interview.

Considering the spate of state-led crackdowns on public assemblies, and detentions of activists and opposition politicians under the Internal Security Act (ISA) in recent months, Malaysia seems miles away from this particular goal.

The 60th anniversary of the Universal Declaration of Human Rights (UDHR) is marked on 10 Dec 2008. The UDHR was adopted by the UN General Assembly in1948 in France. While not legally binding, it is considered a moral obligation for signatories to honour its principles. And this is also why 10 Dec is now internationally recognised as Human Rights Day.

What is legally enforceable is the series of eight UN treaties referred to by Nah that were subsequently derived from the UDHR.

Of the eight treaties that have entered into force, Malaysia has only ratified Cedaw and the CRC — both acceded in 1995 — and with reservations. Malaysia has signed but not ratified the Convention on the Rights of Persons with Disabilities.

What's stopping Malaysia?

Why is Malaysia so reluctant to ratify the rest of the UN treaties? Tan Sri Simon Sipaun, Human Rights Commission of Malaysia (Suhakam) vice-chairperson, says the commission has recommended for the government to ratify the treaties on economic, social and cultural rights, and on civil and political rights but there has been no positive response so far.

“I imagine that the government must have its own reasons for not ratifying them at the moment. Possibly one of the important factors which [the] government has to consider before deciding is associated with the (bumiputera) affirmative policy which could be interpreted at the UN level as discriminatory,” he tells The Nut Graph.

Another Suhakam commissioner, Datuk Dr Denison Jayasooria, elaborates: “The continued reliance on legislation which violates fundamental liberties such as the ISA on preventive detention, the Official Secrets Act and the Printing Presses and Publications Act on freedom of expression makes it difficult for Malaysia to ratify the UN bill of rights.”

Denison cites other laws such as the Police Act which restricts public assemblies, and the Universities and University Colleges Act that control university students' articulation of alternative views.

Hakam's Nah explains: “The human rights treaties specify what states can and cannot do to people — they are legally binding. Perhaps Malaysia is afraid of making such commitments.”

Suaram executive director Yap Swee Seng acknowledges that Suhakam has been trying to get the Malaysian government to ratify these treaties, but without any luck. He tells The Nut Graph, “The common excuse by the government is that we need to change our domestic laws so that they are compatible with these treaties before we ratify them. The NGOs, of course, consider this a lame excuse.”

At the heart of the problem is perhaps Suhakam's status as a national human rights body. Although it was established by Parliament under the Human Rights Commission of Malaysia Act 1999, Suhakam's mandate is to investigate human rights abuses. But it can merely advise the Malaysian government, nothing more.

By comparison, the mandate for the National Human Rights Council of Korea includes “other matters deemed necessary to protect and promote human rights”. This allows the Korean commission, among others, to file its opinions on human rights issues with the courts.

Even so, the Korean commission's independence has recently come under threat by the South Korean government. Additionally, all is not lost with Suhakam — it has a wide mandate to inculcate human rights awareness and education, even in government schools.

Holding accountable

The UN treaty system is not without its criticisms. The first is that it is extremely bureaucratic. Apart from the different treaties, there is also currently a Human Rights Council, which in 2006 superseded the Commission on Human Rights.

The current council also has a separate mechanism called the special procedures to address either specific country situations or thematic human rights considerations around the world. The bureaucratic morass is made worse by the fact that the UN is an inter-governmental organisation. In other words, governments can spend an inordinate amount of time wrangling over even the tiniest of details in a particular declaration or convention.

For example, the Vatican and the US under Bush have consistently blocked attempts to include the right to abortion in any UN effort to defend sexual and reproductive rights. A block of Muslim countries, often led by Malaysia, has also consistently opposed the UN's efforts to protect the basic rights of lesbians, gays, bisexuals, and transsexuals. Many Muslim countries prefer the Cairo Declaration on Human Rights in Islam, which is not legally binding.

These criticisms notwithstanding, Nah says that the UN treaties would still be important instruments in holding the Malaysian government accountable to its human rights track record.

“As with any human process, there are faults in the UN system, but these faults can be overcome if there is political will.”

She notes that the Malaysian government will need to report to the UN's Universal Periodic Review of its human rights track record in February 2009. This is basically Malaysia's human rights report card from the UN. Continuous poor performance will be embarrassing.

Civil society activist and DAP Member of Parliament (MP) for Klang, Charles Santiago, says it's imperative for Malaysia to sign all the UN human rights treaties.

“We need to force political parties to take a position on UN treaties. It is also important to ensure that in policy-making, rights must become part and parcel of the process. MPs must be familiar with this as well,” Santiago tells The Nut Graph in a phone interview.

According to Santiago, framing the right to development, water or housing ensures an enabling environment that helps all poor people, regardless of race and religion.

At the moment, however, Suaram's Yap says that there needs to be more awareness. “Ratifying treaties is still a pretty new concept to a lot of people. People might not know what these treaties are and what the benefits are of ratifying them.”

Nevertheless, Yap remains hopeful about growing public awareness and its impact on political leaders.

“I think with the [current] political changes, there is much more room for human rights work. [After] the past 10 to 20 years, people are now more aware of human rights. [This] is an important foundation [for] progress. So I am quite optimistic about our human rights prospects.”