We write in response to the invitation extended to Aliran Kesedaran Negara (Aliran), Persatuan Kebangsaan Hak Asasi Manusia (Hakam) and Suara Rakyat Malaysia (Suaram) by Suruhanjaya Hak Asasi Manusia Malaysia (Suhakam), vide Suhakam's letter of 29 April 2000, to participate in a dialogue on human rights in Malaysia to be held at Suhakam's office in Kuala Lumpur on 15 May 2000. On behalf of Aliran, Hakam, and Suaram, as well as the non-governmental organisations (NGOs) which have endorsed this Memorandum, we take this opportunity to congratulate Tan Sri Musa Hitam and his fellow commissioners on their appointment as members of Suhakam. We also wish to thank Suhakam for inviting us to this dialogue session. The enactment of the Human Rights Commission of Malaysia Act (HRCMA) 1999 and the establishment of Suhakam together represent a small but significant step forward in the Malaysian rakyat's long struggle to protect, preserve and extend human rights in the country, among other things, by demanding the institution of an independent national human rights commission. Accordingly we welcome in principle Sukaham's establishment. We hope Suhakam will live up to public expectations that an independent, effective and just national human rights commission will help entrench our on-going struggle to compel the Malaysian government to accord a broad, deep and meaningful respect for human rights both in principle and practice. We note, however, that Parliament only enacted HRCMA 1999 amidst an intense and prolonged political crisis which has aroused grave public concern and wide protests over the deterioration of the human rights environment in Malaysia. Nor is it a coincidence that Suhakam has been established at a time in our nation's history when key public institutions of law, order, and justice have come under relentless public criticism not least for their failure to uphold the protection of human rights in the country. Under these circumstances, Malaysian citizens are justified in asking whether and to what extent Suhakam's mandate, role, activities and performance can properly serve and truly advance the cause of human rights protection in the country. In particular, we are concerned to ask what statutory and administrative limitations, embodied in HRCMA and the manner of Suhakam's establishment, represent real, immediate and potential, obstacles to a full attainment of Suhakam's fundamental mission. In the following sections of this Memorandum we address these fundamental questions and several related issues. I. Definition of Human Rights and Suhakam's Mandate In our opinion, the HRCMA 1999 places undue curbs on Suhakam's mandate by offering a truncated definition of 'human rights' The definition of 'human rights' provided by HRCMA 1999 refers only to 'fundamental liberties as enshrined in Part II of the Federal Constitution'. It would be self-limiting, if not immediately self-defeating for Suhakam to accede to this narrow and legalistic definition of human rights as its operating principle for the following reasons:
Given the Government's far from admirable record on human rights, Suhakam should not be persuaded by any official or politically motivated consideration of the 'realities' or 'peculiarities' of Malaysian society to accept HRCMA's restrictive definition of human rights. Suhakam should not take as its own operating principle the truncated definition of human rights being offered by the Government via HRCMA 1999. On the contrary, Suhakam should have 'as broad a mandate as possible' in line with the United Nations General Assembly's 'Paris Principles' governing the establishment of national human rights commissions (Appendix 4). Suhakam should insist, therefore, that the Government demonstrates its acceptance of a broad mandate for Suhakam by immediately carrying out the following actions: i. Parliament should amend HRCMA 1999 to bring the 'Malaysian definition of human rights' with universally recognized human rights standards ii. The Government should ratify the Universal Declaration of Human Rights and the United Nations' various covenants on human rights iii. Parliament should annul the four proclamations of states of emergency, and, iv. Parliament should review harsh and coercive statutes, and repeal entire laws or relevant portions of pertinent laws, so as to guarantee Malaysian citizens the broadest range of human rights as contained in the Universal Declaration of Human Rights and other related international instruments. II. Jurisdiction and Power Any national human rights commission can only function efficiently and operate with authority and credibility if it is conferred comprehensive jurisdiction and adequate power in human rights matters. This must be particularly so when the commission investigates infringements or violations of human rights. In Suhakam's case, therefore, it is essential that its jurisdiction and power are not effectively reduced or curtailed by existing law. Regrettably, however, Section 12 (2) of HRCMA expressly states that Suhakam 'shall not inquire into any complaint relating to any allegation of the infringement of human rights' which a. is the subject matter of any proceedings pending in any court, including any appeals; or b. has been finally determined by any court. Indeed Section 12 (3) of HRCMA adds that if an allegation of human rights infringement or violation being investigated by Suhakam 'becomes the subject matter of any proceedings in any court', then Suhakam 'shall immediately cease' its investigation. Suhakam should not passively agree to these portions of HRCMA because their enabling provisions severely diminish Suhakam's actual jurisdiction, reduce its effective investigative power, and, ultimately, prevent Suhakam from offering redress to victims of past, present and future infringements of human rights. Instead, Suhakam should insist that Parliament immediately amend HRCMA to remove these enabling provisions that effectively open the way for a consistent misuse or abuse of law to circumvent, terminate, or otherwise make a mockery of any serious inquiry into human rights infringement and violation that Suhakam might undertake. III. Independence and Resources It is incumbent upon the Government to demonstrate its commitment to supporting a national human rights commission in deed by making available sufficient resources to allow Suhakam to carry out its functions. To date, there is no compelling evidence to suggest that Suhakam will rapidly acquire sufficient resources for effective functioning, or swiftly end its direct dependence upon the Government. Instead Suhakam has had an inauspicious beginning by being 'housed' within the Ministry of Foreign Affairs (MFA) and 'serviced' by MFA officers. It is reassuring to hear the Chairman of Suhakam remind his fellow commissioners to place the discharge of their duties and responsibilities above any material rewards they may individually enjoy. But it is, ultimately, more pertinent for Suhakam to state publicly – which neither Suhakam nor the Government has indicated to date – when precisely Suhakam will be provided with sufficient resources, including office space and personnel, to operate as an independent institution. Suhakam should, therefore, swiftly move – physically, financially and in other ways – from its current dependence on the Government if it wants the public to view Suhakam's claim to independence with anything other than skepticism. IV. What We Expect of Suhakam Since Suhakam has only been very recently set up, there may not yet be a unified Malaysian public opinion as to what Suhakam's role, mission and objectives should be, quite apart from the Government's agenda and the statutory specifications of HRCMA 1999. Moreover, as Suhakam proceeds with its activities, programmes and priorities with respect to the human rights situation in Malaysia, Suhakam and its Commissioners will no doubt develop their own understanding of what the Malaysian public expects of a national human rights commission. However, public opinion certainly does not expect to discover in Suhakam a hollow national human rights commission that has little to offer beyond being used by the Government to deflect, divert or quell public criticism of the latter's human rights record. Neither can Suhakam be content with becoming, like many other public 'commissions' and 'agencies', an institution that moves or acts only when prompted or permitted to do so by the Government. In our considered opinion, the Commissioners of Suhakam have a solemn duty to demonstrate to the public that they will be clear and steadfast in discharging their primary, individual and joint responsibility, which is nothing less than to help improve the human rights situation in Malaysia for the benefit of all citizens. There is no reason why, with time, effort and dedication, Suhakam cannot make genuine progress and a valuable contribution towards helping to improve the human rights situation. But Suhakam can only do so if it consistently regards and conducts itself not as an appendage of Government, but as an institutional expression of a long and continuing tradition of popular struggles to protect human rights in Malaysia. Towards this end, the Malaysian public generally expects that Suhakam, while carrying out its functions, will be: 1. Accessible to the public, and particularly to victims of infringements of human rights, by various means, including i. maintaining of an open working environment that encourages regular interface with the public ii. adopting informal and flexible, not bureaucratic or legalistic, guidelines for making and lodging complaints of human rights violations iii. decentralizing its structure to prevent Suhakam from becoming just a Peninsular Malaysia- or Kuala Lumpur-centric institution, and, iv. devolving its power so that Suhakam can more quickly and effectively reach particularly vulnerable sectors of Malaysian society which are often found at grassroots level. 2. Responsive to complainants who report infringements and violations of human rights, among other things, by i. attending promptly to complainants and informing them of Suhakam's decision and plan of action ii. helping complainants do what is necessary to lodge complaints and reports of human rights infringements and violations, and, iii. recommending remedial action as soon as it is clear that complainants require redress or assistance that cannot await a protracted investigation 3. Transparent in its proceedings so as to ensure i. that 'justice is done and seen to be done' in cases of human rights violations ii. the highest possible level of exposure of human rights infringements iii. an increased public awareness of the need and the means available to check the erosion of human rights in the country, and, iv. the widest possible mobilization of public support in defence of human rights. 4. Accountable in its judgments and findings in order to establish i. proper bases and precedents for understanding and dealing with human rights violations ii. clear criteria for reviewing and/or appealing decisions taken on cases of human rights infringements, and, iii. consistency in abiding by universally recognized human rights standards. 5. Pro-active in its investigations and activities so that Suhakam will i. of its own volition conduct inquiries into human rights infringements and violations ii. retain an active stance and not end up as a passive repository of complaints iii. demonstrate an independent scope of action free of Government prompting, priority or position, and iv. take the lead in protecting human rights. V. What Suhakam Can Expect from Us In a recent media interview, the Chairman of Suhakam described Aliran, Hakam and Suaram as NGOs placed 'in the forefront' of the struggle for human rights and civil liberties in Malaysia. We are encouraged that Suhakam recognizes our contribution to human rights protection. However, we are but three among many NGOs, associations, societies and individuals who have dedicated themselves to a long human rights campaign in Malaysia (Appendix 3). From that continuing campaign, much has been learned about the human rights situation in Malaysia, and much has been communicated about the ways and means of improving that situation. To the extent that Suhakam belongs to this campaign and contributes to its success, Suhakam has every reason to draw upon our learning and call on our cooperation in order to build upon the collective achievement of all those who are placed 'in the forefront' of the campaign for human rights protection in this country. VI. Conclusion Whether judged by past conditions or by reference to situations in comparable societies, the human rights situation in Malaysia has markedly deteriorated of late. The deterioration has been exacerbated by the readiness of the executive branch of government to abandon the 'rule of law', as it were, in favour of a 'rule by law'. Other branches of government are either unable or unwilling to provide effective checks and balances on executive conduct. Consequently human rights infringements have grown in frequency and intensity as Malaysian society suffers from the Government's habitual resort to draconian laws and repressive action to deal with legitimate criticism and legal dissent. Under these conditions, Malaysian society expects and deserves nothing less than the full support of the Commissioners of Suhakam to advance the cause of human rights protection in our country. Responding to Suhakam's call for a dialogue, we in Aliran, Hakam and Suaram, together with the NGOs which endorsed this Memorandum, in turn call upon Suhakam to prove itself to be a genuinely bold, independent and effective national human rights commission. Submitted by: P Ramakrishnan Raja Aziz Addruse Dr Kua Kia Soong Endorsed by: 1)Angkatan Belia Islam Malaysia (ABIM) 2)Alaigal 3)All Women's Action Society (AWAM) 4)Amnesty International Malaysia (AI) 5)Centre For Orang Asli Concerns (COAC) 6)Community Development Center (CDC) 7)ERA Consumer Malaysia (ERA) 8)Ideal Times 9)Indigenous People Development Center (IPDC) 10)Institute for Social Analysis (INSAN) 11)International Movement For A Just World (JUST) 12)Jawatankuasa Sokongan Masyarakat Ladang (JSML) 13)Jawatankuasa Sokongan Peneroka Bandar Kuala Lumpur (JSPB) 14)Jawatankuasa Sokongan Peneroka Bandar (Johor) 15)Labour Resource Centre (LRC) 16)Majlis Pelajar Malaysia (MPM) 17)Malaysia Youth And Student Democratic Movement (DEMA) 18)Malaysian Trade Union Congress (MTUC) 19)Penang Organic Farm 20)Persatuan Sahabat Wanita Selangor (PSWS) 21)Pusat Komunikasi Masyarakat (KOMAS) 22)Sisters in Islam 23)Suara Warga Pertiwi (SWP) 24)SUSDEN 25)TENAGANITA 26)The Selangor Chinese Assembly Hall Civil Rights Committee (CRC) 27)The Selangor Chinese Assembly Youth Section (SCAHYS) 28)Tholialiyin Tholar (TT) 29)United Chinese School Committee Association of Malaysia (Dong Jong) 30)Women's Agenda For Change 31)Women's Development Collective (WDC)
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