Malaysia 2013 UPR Results

2013 UPR – key assesments:

1.1 Accession to International Human Rights Instruments

Most of the recommendations accepted by the Malaysian government only speak broadly to “considering to act” and the continuing of existing efforts, no matter how minimal they may be, with the signing of the six core international conventions on human rights that the country is not yet a Party. The acceptances of such recommendations are quite meaningless as these do not adequately refer to specific actions and suggest no stated deadline for accession. With the recommendation regarding the Optional Protocols to the CRC, the Government of Malaysia has already acceded to optional protocols 1 and 2 in 2012 as stated in the government’s response. It is the third optional protocol on the Communications Procedure that the government has yet to accede. Amendments to the Child Act 2001 took place in the parliament in March 2016 which included the substitution of caning with community service. However, specific penal code to cover holistically the issue of child pornography is still absent. There has been no discernable advancement towards the accession of the ICCPR, ICESCR,ICERD, CAT, ICRMW or ICPPED, let alone their respective optional protocols, and the Rome Statute of the International Criminal Court.

1.2 Engagement with International Human Rights Mechanisms

The Special Rapporteur on the right to food conducted a visit to Malaysia from 9 to 18 December 2013, at the invitation of the Government
The Special Rapporteur on trafficking in persons, especially women and children visited Malaysia from 23 to 28 February 2015, at the invitation of the Government of Malaysia.
Both Special Rapporteurs made recommendations to the Malaysian government to adopt the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, and other key treaties not yet ratified by Malaysia. Specific concerns were also raised in relation to the lack of consultation in how the National Human Rights Action Plan was being developed and how the government needs to accede to all international human rights instruments that protect the human rights of refugees, asylum seekers, migrant workers, domestic workers, forced labour, and the indigenous peoples (Orang Asli and Orang Asal) of Malaysia.
Malaysia has received 12 requests for official visits by Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression (2016); cultural rights (2016); on the sale of children, child prostitution and child pornography (2017); on the situation of human rights defenders (2002; reminder 2010); on freedom of religion or belief (2006); on the human rights of migrants (2006; reminder 2012); on the promotion and protection of human rights while countering terrorism (2005; reminders 2010, 2012); Independent Expert on minority issues (2007); on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (2008); on the independence of judges and lawyers (2011); on the rights to freedom of peaceful assembly and of association (2011; reminder 2013). Only the request to conduct an official visit by the Special Rapporteur on Indigenous Peoples was accepted.

2.1 Freedom of Expression

Since the conclusion of the Malaysia’s 2nd Universal Periodic Review (UPR) in 2013, the Government of Malaysia has reneged on many of its accepted recommendations in the area of civil and political rights. In many cases, rather than a gradual improvement in human rights, Malaysia has experienced a sharp decline in the enjoyment and fulfilment of rights as a result of the political scandal that permeates the Government and its senior officers and leaders.
Since 2013, the Sedition Act 1948, the Communications and Multimedia Act 1998, the Printing Presses and Publications Act 1984 and other laws impacting freedom of expression have been actively used against human rights defenders and other individuals, including politicians. In some cases, security laws designed to address domestic terrorism have been used to arrest and detain known human rights defenders during their public campaigns.

2.2 Freedom of Assembly and Association

In 2014, the Court of Appeal of Malaysia delivered a judgment that declared section 9 of the PAA as unconstitutional, effectively neutering the PAA’s ability to criminalise organizers of peaceful
assemblies who”failed” to notify the police. This was brought about by a constitutional challenge by Nik Nazmi Nik Ahmad, who was charged under the PAA for organising a protest (the Blackout 505 rally) over irregularities in the 13th General Election. Unfortunately, this landmark decision is now put in question following another Court of Appeal decision in 2015 which declared Section 9 of the PAA as constitutional. The Attorney General has expressed interest in re-prosecuting Nik Nazmi under the PAA to allow the Federal Court to “make a final ruling on the law.” It remains to be seen which Court of Appeal decision would be recognised by the Federal Court. Even though there was a period in which section 9 of the PAA was declared unconstitutional and not applicable, up until the second Court of Appeal decision on 1st October 2015, the Royal Malaysian Police persisted with arresting and harassing organizers of peaceful assemblies under section 9 of the PAA and other laws. As an example, organizers for the Bersih 4.0 rally were called for questioning under Section 9 of the PAA at the conclusion of the Bersih 4.0 rally in August 2015.
Beyond the PAA, those attending peaceful assemblies have been charged under section 124b of the Penal Code for “activities detrimental to parliamentary democracy.” Arrests made under this section of the Penal Code included 17 student activists who were camping outside the Parliament of Malaysia, and organizers and participants of the #TangkapNajib protest.

2.3 Freedom of Religion

There has been not much positive ‘progress’ since 2013 report when it comes to Freedom of Religion in Malaysia although Article 11 of the Federal Constitution of Malaysia states that every individual has the right to profess, practice and preach his religion or belief.
The following details are some of the cases which have resulted to discriminatory practices.
Islam is highly politicised in Malaysia and fear-mongering is a dominant tactic, used to control the minds of muslims. While internationally, Malaysia may be deemed a moderate and progressive Islamic country, the realities on how laws are enforced and the resulting practices and outcomes are discriminatory to women, and the non-conforming, marginalised and minority groups.
Syariah laws in Malaysia are not divine. The sources to extract “hukum-hakam” or legal maxim are divine (Al-Quran, Sunnah, Ijma’ and Analogy) but it needs human understanding and interpretation to come to a certain conclusion. The outcomes are called Fiqh (Islamic Jurisprudence) and it is open for criticism. Any discourse on the religion of Islam seen as a sensitive issue. In practice, such discourses are so heavily regulated that increasingly, the imposition by the government is that any discussions on Islam, has to be done by a group of ‘qualified religious scholars’.

2.4 Arbitrary Detention

The Government of Malaysia did not supportrecommendation47 on the grounds that human rights norms and standards were taken into consideration when the amendments were made to the Prevention of Crime Act 2015.However, the provisions of the Prevention of Crime Act 1959 (POCA) and laws similar to it such as the Prevention of Terrorism Act 2015 (POTA) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA) do not adhere to recognised international human rights standards. For the most part, these laws permit detention without trial for up to 60days in total. The detention period is determined by the Royal Malaysian Police with no room for any judicial input. As of 31st March 2016, civil societies have ascertained that at least 808 individuals have been arrested under the POCA with 188 individuals under detention order. At this juncture, there have not been any officially confirmed cases of detention under POTA and no data on detention under DDA.
In the absence of legal reform, the Royal Malaysian Police and the respective board in charge of hearing cases under POCA and POTA must take proactive steps to minimize the damage caused by these laws. The Royal Malaysian Police should minimize the use of these laws as much as possible. In the event that the Royal Malaysian Police is required to use these law, preliminary detention periods must be avoided as there are provisions already provided for the use of electronic monitoring and house arrests for those detained. The Royal Malaysian Police and the POCA and POTA board should utilise electronic monitoring whenever possible and refrain from issuing detention orders under these laws.

2.5 Torture and Cruel, Inhuman or Degrading Treatment

Despite the high profile cases of A. Kugan, N. Dharmendran and many others, allegations of torture against enforcement agencies especially the Royal Malaysian Police remain prevalent. In February 2016, SUARAM received 13 allegations of torture by those detained under Special Offences (Special Measures Act) 2012 SOSMA. The methods of torture alleged by these detainees include physical violence, sexual harassment, threat of violence, threats at gunpoint during questioning and other in humane treatment. Despite the gravity of the allegations made, the Inspector-General of Police downplayed the allegations.
Systemic reform must be implemented for any improvement to be made in this regard. The Government of Malaysia must introduce legislative reform and introduce new laws to outlaw the use of torture in Malaysia. Substantive efforts must also be taken by enforcement agencies in ensuring that the use of torture is not sanctioned and that internal disciplinary actions will be taken against those found guilty of torturing detainees.

Agencies accused of alleged use of torture should also extend full cooperation to the national human rights institution, SUHAKAM and the Enforcement Agency Integrity Commission (EAIC) in their investigations and ensure that the truth regarding the allegations would be made publicly known and those guilty of torture punished accordingly.

Links: Malaysia UPR 2013

Sources: http://www.ohchr.org/EN/HRBodies/UPR/Pages/MYSession17.aspx

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