Malaysia under review at UN Human Rights Council on 8/11/2018

Universal Periodic Review - Malaysia

Third Cycle

Date of consideration: Thursday 8 November 2018 - 14:30 - 18:00

Visit this webpage to see :-

The Malaysian National Report
UN Information Compilation on Malaysia
Summary of stakeholder's contributions - which includes SUHAKAM, MADPET and other civil society groups..

Media Statement – 3/11/2018

MALAYSIA, MAKE US PROUD AT UPCOMING UPR ON 8 NOVEMBER 2018 BY DEMONSTRATING NEW GOVERNMENT’S COMMITMENT TO HUMAN RIGHTS, JUSTICE AND RULE OF LAW

-Abolish Death Penalty, Repeal Detention Without Trial Laws, Repeal SOSMA, Sedition Act,…-

Malaysia’s Universal Periodic Review(UPR) in Geneva will happen during the session beginning on 8 November 2018,  which MADPET(Malaysian Against Death Penalty and Torture) and possibly many others will see Malaysia, under a new PH government, being more open and ready to accept recommendations, and make positive commitments, even agreements, to ensure greater human rights, justice and Rule of Law in Malaysia.

The Universal Periodic Review(UPR) is a process where Malaysia’s human rights record will be reviewed by other UN member states, who will also make recommendations on what Malaysia should do to improve its state of human rights, justice and rule of law.

The UPR process, under the auspices of the Human Rights Council, also gives opportunities to Human Rights Defenders and Civil Society an opportunity to submit reports, arguments and even recommendations. Many, including MADPET, would have done so and tried to lobby other countries to highlight human rights failings, to urge Malaysia to be more committed to human rights and Rule of Law in accordance to universal standards.

Now, this UPR process leading to the actual face to face session of review of Malaysia in a few days, began when Malaysia was then governed by the previous Barisan Nasional(BN) government that obviously had little regard to human rights, justice and rule of law.

Malaysia, in the past, has even avoided ratifying or being a signatory to many of the fundamental  UN human rights convention.

CORE HUMAN RIGHTS CONVENTIONS THAT MALAYSIA YET TO RATIFY

Being a member of the United Nations, Malaysia accepts the Universal Declaration of Human Rights(UDHR), but to date have failed to ratify or sign the International Covenant on Civil and Political Rights(CCPR), International Covenant on Economic Social and Cultural Rights(CESR). Without the ratification/signing of the CCPR and CESR, there is really not a clear proclaimed commitment to the principles of human rights found in the UDHR.  

Now, that Malaysia has decided on the abolition of the death penalty, there is also no more reason for Malaysia not to ratify/sign the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming Towards the Abolition of the Death Penalty(CCPR-OP2-DP);

Malaysia has also yet to ratify important UN Conventions like the Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment(CAT) and the Optional Protocol of the Convention Against Torture; Convention for the Protection of All Persons From Enforced Disappearance(CED); International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families(CMW)

To date, Malaysia has only signed on very few of the fundamental human rights convention being the Convention on the Elimination of All Forms of Discrimination on Women (CEDAW), Convention on the Rights of the Child(CRC) and the Convention on the Rights of Persons with Disabilities(CRPD). Malaysia also ratified/signed certain Optional Protocols relating to the Rights of the Child.

Many a country has ratified many Human Rights Conventions and/or Treaties, but alas have failed to practice what they have agreed to. It is a basic principle of international law that a State party to an international treaty must ensure that its own domestic law and practice are consistent with what is required by the treaty.

ONCE RATIFIED/SIGNED, UN CONVENTIONS MUST BECOME PART OF MALAYSIAN LAW IMMEDIATELY

In some countries, once it is ratified at the international level, the Convention may automatically form part of national law. In other words, the Convention would be directly enforceable by national courts and other implementing authorities.

In some other countries, the legislature might have to adopt an act of ratification at the national level. This may have the effect of incorporating the convention into domestic law.  

Malaysia should pass a law that ensure that any Convention once ratified/signed, shall automatically form part of national law.

Alternatively, In Malaysia, this may be done by the tabling of a Bill in Parliament to adopt and accept the contents of the each and every Convention ratified/signed by Malaysia as part of national law. This will be more tedious as it requires separate Bills to be tabled every time a new Convention is ratified/signed.

MADPET believes this is best, compared to the old BN government practice of amending all relevant legislations to ensure compliance with the principles and contents of the Convention already ratified/signed by Malaysia.

CEDAW, for example, was ratified/signed in 1995, but the process of amending so many different legislations to make it to be in compliance with the principles and content of CEDAW has taken far too long – we are still not sure whether all relevant Malaysian law has been amended to be in line with CEDAW. Same situation with the CRC.

If however, CEDAW was incorporated into Malaysian law by an Act of Parliament, then if in court, any provision of some existing law is found not in compliance with CEDAW,  judges could simply reject such laws or the use of it on grounds that it is inconsistent with CEDAW.

This adoption of a Convention as part of Malaysian law by Parliament enables our judges and courts to immediately consider the arguments that certain provisions in certain written laws and past judgments  are in fact in contradiction with the relevant United Nations Conventions that Malaysia has already ratified/signed.

At the same time, existing legislation will be amended to be in compliance with the UN Convention Malaysia ratified/signed. Even if the courts later discover some provision in some law that is not consistent with a Malaysia ratified/signed UN Convention, no injustice if Malaysia has already by law made the Convention part of Malaysian law. The odd law, discovered by court, to be non-compliant could then be simply amended in the upcoming Parliamentary session.

MADPET hopes that this new Malaysian government will take the position of immediately passing laws recognising and accepting UN Conventions ratified/signed by Malaysia to be part of Malaysian law.

The UPR process commenced when Malaysia was still governed by the UMNO-BN government, and as such things would have changed under this new Pakatan Harapan-led government, under Prime Minister Mahathir Mohamad, who is seen as being more committed to justice, human rights and the rule of law. There is, as such, a lesser need to push Malaysia vide recommendations and lobby, as this new alternative government would definitely do the needful to ensure that there is greater justice, human rights and rule of law in Malaysia.

The call to abolish death sentences and protect the rights of the indigenous people were the top two recommendations given to Malaysia by most United Nations members at the last UPR of Malaysia in October 2013(Malay Mail, 25/10/2013) – but following recent Cabinet decision to abolish the death penalty, and the assurance that the relevant Bills will be tabled in the current Parliamentary session that will end on 11/12/2018, UN member nations and others may likely use their limited about 3-minute intervention to make recommendations in other areas of human rights.

MADPET calls on Malaysia to take this upcoming UPR  as an opportunity to commit to ratifying/signing all outstanding fundamental human rights including Convention Against Torture and the covenants to the Universal Declaration of Human Rights(UDHR) including the International Covenant on Civil and Political Rights Aiming Towards the Abolition of the Death Penalty(CCPR-OP2-DP);

MADPET also calls on Malaysia to immediately put into effect the policy that ratified/signed UN Conventions are immediately made part of Malaysian law, which could be done speedily by an Act of Parliament rather than present practice of slowly amending various legislations which delays application and reliance on principles and values in Malaysia ratified/signed UN Conventions;

MADPET urges Malaysia to expedite the passing of Acts of Parliament that will abolish the death penalty, and also those draconian Detention Without Trial Laws;

MADPET also urges that the Sedition Act and other draconian provisions in laws affecting freedom of expression, opinion, media and peaceful assembly be repealed so that all in Malaysia can effectively begin to experience such human rights, which have been long denied by the former UMNO-BN regime.

MADPET urges that government will makes Malaysians proud during the UPR of Malaysia by a demonstration of the highest commitment to human rights, justice and Rule of Law.

Charles Hector

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)