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Post-Bersih 4, human rights still a long way to go

COMMENT Today, Sept 9, 2015, marks the 16th anniversary of the publication in the government gazette of the Human Rights Commission of Malaysia Act 1999.

A ceremony will be held today to commemorate 15 years of the commencement of operations of the Human Rights Commission of Malaysia, better known by its Malay acronym Suhakam, which took place on 24 April 2000.

This commemoration comes at a critical point in the development of human rights in Malaysia. The successful holding of the Bersih 4 rally on Aug 29 and 30 is a testament to the maturity of the organisers, participants and authorities who, working together, managed to enable citizens of Malaysia to exercise their constitutional right to freedom of assembly, in peace and without arms.

However, the event evidenced both the best and the worst of Malaysian human rights. While the two days of peaceful assembly passed off without significant incident, the high level of demonisation, misinformation, threat of punitive action and other forms of negative publicity demonstrated in the run-up to the Bersih 4 rally show that authoritarian mindsets and illiberal perspectives continue to prevail.

After the event, some of the organisers have been called up by the Royal Malaysian Police Force to give statements as part of investigations into possible offences against parliamentary democracy.

Foreign Minister Anifah Aman, responding recently to criticism of the state of Malaysian human rights expressed by Amnesty International secretary-general Salil Shetty, pointed to the passage of the Peaceful Assembly Act 2012 as proof that Malaysia is moving forward in its respect of human rights.

Perhaps the minister should send a note about this to our police force, the leadership of which, both before and even after the rally, continued to refer to Bersih 4 as “illegal”. Indeed, the inspector-general of police Khalid Abu Bakar was reported to have called for the return of Section 27 of the Police Act 1967, repealed in 2012, which necessitated a police permit for an assembly.

The leadership of several of our world-class aspiring tertiary-level institutions would also appear to require a mindset makeover, having issued warnings to their students of potential disciplinary action if they were found to have participated in the “illegal” Bersih 4 rally.

The change in the legal environment underlying the amendment to Section 15 of the Universities and University Colleges Act 1971, which in 2012 made lawful once again political activity among university students, was conveniently forgotten, whether intentionally or otherwise. Where is the integrity of our academic institutions when they have to resort to myths and manipulations?

‘Human rights are a Western dogma’

Over the course of the last 15 years, we have seen repeated attempts to revive the “Asian values” argument about human rights. Dr Mahathir Mohamad, under whose tenure as prime minister Suhakam was established, was himself a major proponent of the view that human rights were Western dogma masquerading as internationally-accepted norms, to be forced and foisted upon Asian countries whose different cultural, religious and social values had little acceptance or tolerance of such perversions.

So, mention equality and non-discrimination of sexual minorities and the Pavlovian response would be, “So you want gay marriage?” Ask for freedom of speech, assembly and association, and the automatic reply would be, “Yes, but only for citizens and then subject to such restrictions as deemed necessary or expedient in the interest of the security of the federation or any part thereof or public order or morality.”

Fundamental liberties are always restricted by a fear of the worst case scenario, as though human rights was a grudgingly permitted, necessary evil that had to be limited and curtailed at every possible opportunity. Recalling an old Ribena advertisement: “Boleh cuba? Boleh, tapi sikit saja tau!”

Anifah Aman ( photo ) perpetuates this thinking in his response to Salil Shetty. He and several of his cabinet colleagues, including Prime Minister Najib Abdul Razak, have in effect claimed a form of Malaysian “exceptionalism”, where the democracy that we practise is different, where the religious freedom that we practise is different, and where the human rights that we recognise are different.

Hence, in their opinion, it is inappropriate to judge Malaysia by international standards and norms. We are a different country, with a different history, heritage and human rights trajectory, it is often said. So when we talk about human rights, we mean something different.

This brings to mind a famous passage from the fairy tale ‘Alice in Wonderland’ by Lewis Carroll, and a conversation between Alice and Humpty Dumpty: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.”

Legal concepts cannot mean a multiplicity of things. Limitations, like “in the interest of security”, “public order” and “public morality”, appear in laws in other jurisdictions, and have been interpreted and defined. Even the principles that undergird our Federal Constitution exist and are used elsewhere, and cannot be argued to be one of a kind.

We have to be in line with international norms

If Malaysia wants to continue to have a role in international affairs – and it does, seeing how it campaigned very hard for a seat on the United Nations Security Council – it must progressively bring its laws and policies into line with international norms and standards. One of the more promising developments in the area of human rights in recent years is the reference and recourse that our courts are having to international jurisprudence.

So, for example, in understanding gender discrimination and the best interest of the child, which have been recently the subject of litigation, our courts are increasingly referring to deliberations of international treaty bodies like the Committee on the Elimination of Discrimination against Women and the Committee on the Rights of the Child, set up under the United Nations Convention on the Elimination of all forms of Discrimination Against Women and the United Nations Convention on the Rights of the Child respectively.

However, Malaysia’s record of acceding to international conventions is atrociously poor, so much so that our government cannot even find the moral courage and political leadership to accede to something as wholesome as motherhood and apple pie such as the Convention Against Torture. The question that must be asked is: are we in favour of torture?

Arguments that international human rights norms and standards are modern innovations are hard to square with the fact that two of the key international human rights treaties, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, date back to 1966.

The Convention on the Status of Refugees, which Malaysia has also refused to sign, dates back to 1951 and reflects customary international law. Many of these international treaties have been signed and implemented by Asian countries, and Muslim nations as well.

Among the members of the Organisation of Islamic Cooperation (OIC), Malaysia ranks at the bottom in terms of accession to international human rights treaties. This is no one’s idea of international leadership, unless one believes in leadership from the rear.

While there have been significant milestones since the setting up of Suhakam, an omission that sticks out like a sore thumb is the continuing refusal of the government to allow a debate of Suhakam’s annual reports.

Suhakam has to be given a wider role

None of its annual reports, published since 2001, and laid before the Dewan Rakyat, has ever been debated or discussed. A suggestion that Sukhakam’s reports be discussed by a parliamentary committee has gone nowhere. It is difficult to reconcile the government’s claim that it listens to Suhakam when it has consistently refused to allow Parliament to hear what it has to say.

Going forward, much more needs to be done by the government to protect, uphold and promote human rights in Malaysia. Suhakam, especially in the last five years under the able leadership of Hasmy Agam ( photo ), a seasoned Malaysian international diplomat, together with his fellow commissioners, has managed to push the envelope in terms of human rights awareness, education and training.

So much so that the government often treats Suhakam with a similar disdain it has for human rights non-governmental organisations. From allegations of being a toothless tiger back in 2009, it has emerged as an honest broker in a contemporary environment in which the government is viewed as suffering from a trust deficit.

Suhakam has pursued a national inquiry into the land rights of the Orang Asal/Asli in Malaysia, conducted several public inquiries into major human rights breaches, such as that which occurred in Bersih 2 and Bersih 3, and held watching briefs in legal proceedings on matters of human rights interest.

If the government seeks to claim any credibility in the area of human rights, especially among the international community, it must strengthen and expand the role and responsibility of Suhakam. It must, at the very least, give Suhakam a greater watchdog function over the planning, implementation and evaluation of policies and practices of government departments in order to ensure they are human rights-compliant. Human rights audits of government should be carried out at all levels.

Suhakam should also be given a wider role to play in the enforcement of human rights among business enterprises, to ensure that commercial entities understand and reflect best practices in their operations. This is more so if the government intends, as it does, to become part of the Trans Pacific Partnership Agreement.

Human rights compliance by all stages of the supply chain will become increasingly more critical for businesses and countries that seek a globally-competitive market to maintain and advance their competitive advantage. Concepts like sustainability will increasingly encompass human rights-based attitudes and approaches. More mature, conscientious and sophisticated consumers will demand goods and services that are sustainably produced.

For these reasons, the government can ill-afford to pay lip service to concerns about the state of human rights in Malaysia. Respect for fundamental liberties and human rights will be at the core of our survival as a nation, both politically and economically. It is no longer a choice or luxury, but an absolute necessity.


ANDREW KHOO is co-chairperson of the Human Rights Committee of Bar Council Malaysia. This article is written in his personal capacity.

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