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 ©New
Sunday Times (Used by permission)
by Aniza Damis
• A yardstick to gauge human rights
• NST Editorial: Righting wrongs of human rights
In pushing for human rights in the country, it’s not all
cut-and-dried as prescribed by the law, Human Rights Commission of Malaysia (Suhakam)
chairman Tan Sri Abu Talib Othman tells Aniza Damis
Q: Do you think there is enough political will to ensure
human rights obligations are met?
A: In certain cases, the government has done what ought to be
done in the circumstances; but there is room for improvement.
For example, the delay in disposal of cases. What is the government doing when
judges don't write judgments?
Compensating the judges in the form of money is not a form of reformation.
Examine the reason why judges take so long to dispose of cases and write
judgments.
Also, the ouster clause cuts across the principle of rule of law and restricts
the rights of individuals to go to court to seek justice against the executive.
The Constitution guarantees the right to go to court to seek remedies. So why is
there this restriction to go to court? Where else is the public supposed to go
to seek justice for the wrong done to them? We have pointed this out to the
government. Unfortunately, we didn't get a response.
Year after year, our reports to Parliament detailing our activities and
recommendations are never debated in Parliament, much less acted upon by the
relevant ministries. On the contrary, there is a tendency to undermine our
independence by certain ministries.
For example, it is inappropriate for a ministry to want Suhakam to submit the
report to all government agencies before it is submitted to Parliament.
What's the intention? Are they going to scrutinise our report and influence us
to change it?
This is totally unacceptable and contrary not only to the assurance given by the
minister who moved the bill in Parliament, but to the very provision in the
Suhakam Act.
Q: Do you think the fact that none of your reports has been debated is
indicative of a lack of interest in human rights?
A: I cannot speculate on the reason. One would expect the
report to be debated in Parliament, for such debate would help us in our work in
the promotion and protection of human rights. Unfortunately, there is a
misconception among (certain) ministries that Suhakam is like any other
statutory body established by law.
Suhakam is established in accordance with the Paris Principles (principles
relating to the status and functioning of national institutions for protection
and promotion of human rights).
You cannot place Suhakam in the same class as Felda (Federal Land Development
Authority). The rules applicable to Felda are not applicable to us because we
are a different entity, set up for a different purpose.
We are not an institution charged with any development plan. We are solely and
purely established for promoting and protecting human rights. Unfortunately, we
are treated just like any other statutory body.
Q: Recently, the ERA Consumer and Suaram report (The Education and Research
Association for Consumers and Suara Rakyat Malaysia report) to the International
Coordination Committee (ICC) said Suhakam was not abiding by the Paris
Principles.
A: That body would appear to focus its criticisms on the
wrong party. They raised the question of transparency of appointment.
The power to appoint is not vested in Suhakam. It is provided for in the Act
that the Yang di-Pertuan Agong appoints on the advice of the prime minister.
Q: They say it's not a criticism against Suhakam per se; that it's meant to
tell the government what needs to be improved.
A: Are they so afraid of criticising the government?
Or do they have a separate agenda of their own in criticising Suhakam in respect
of matters which are outside the control and powers of Suhakam?
Q: What are you limited by?
A: We cannot act inconsistent with the act.
Q: Do you think the term of office for the commissioners should be five
years, as it is with other human rights commissions in other countries?
A: We have recommended to the government as far back as 2002
to extend the period of appointment.
I had a discussion yesterday with the chairman of the ICC as well as the
representative of the Office of the High Commissioner of Human Rights (OHCHR),
and we expressed our disappointment that their reason for proposing that Suhakam
be re-graded to B is based solely on the report and criticism of this one civil
society group. I asked them: "Are you acting as the rubber-stamp of the civil
society, or are you looking at us objectively?"
They said they would look at it.
Q: Do you think it would be good if Suhakam members were full-time
commissioners?
A: To me, full-time or part-time is secondary. What is
important is the commitment of the commissioners. If you have a commissioner
full-time but he doesn't want to come to work or he doesn't want to do work,
what can we do?
Q: Should there be a set criteria of who should be appointed, like in India,
where there has to be a certain number of former senior judges?
A: You cannot guarantee a person's future performance after
his appointment. It's commitment and conviction that matter.
This is what I stress to the government: the first and foremost consideration is
to appoint people who have knowledge or experience in human rights.
Q: Should there be a more consultative process in the selection of
commissioners?
A: This is what the ICC chairman said, that there must be
transparency. These are the things we have suggested to the government.
The ICC is drafting rules to interpret the 1948 document (the Universal
Declaration of Human Rights).
I made it very clear to the two personalities that any rule made should not be
more than what is expected and envisaged by the 1948 UDHR. The challenge is, how
to sustain the principle of human rights in the face of the changing time,
changing circumstances, and conditions?
We have to move with the times. I asked them to have a look and appreciate what
we have done, and the human rights condition in this country.
You cannot determine the human rights condition of the country using a
"telescoping determination" from Geneva. You must give Suhakam or the government
the right to be heard.
Q: Was there anything in the Suaram report you agreed with?
A: First, they talked about transparency. Ideally, the
government should review the appointment process to make it more transparent. We
have proposed, and hopefully, the government would be inclined to accept our
recommendation.
Q: Is the government aware of the implications of being downgraded to
B-status?
A: I have written to the minister in charge, informing him of
this likelihood and action recommended to be taken to maintain our A-status, and
the implication of Suhakam being re-graded as B.
Q: Considering that Suhakam's recommendations have been ignored before this,
do you think this threat to be downgraded to B status is a blessing in disguise?
A: The act was passed in 2002. Things have changed, so it's
only appropriate for the government to review it in the present environment.
After all, the government has already accepted the 1948 UDHR, and the government
is committed to it. And it's the duty of government to promote and protect human
rights in the country. The ICC has recommended that the appointment process
should be transparent and there should be some form of consultation with the
relevant people.
Secondly, they feel that two years is too short; their view is that it should be
more than two years. But they have not commented on whether it should be
full-time or part-time. To me, all this is not controversial; it doesn't affect
the security of the country.
It would be good, for human rights in this country, to get the right people to
sit as commissioners. People who really believe and have knowledge and
experience on human rights matters.
Q: Should it be required by law for Parliament to debate Suha-kam's reports?
A: It's not appropriate. We must trust the wisdom of
Parliament. The people are the judge. At the end of the day, the people will
judge their (MPs') performance and make the right decision.
Human rights is a matter of great importance in this country. The law which
Parliament passed requires us to place our report in Parliament. Therefore, one
would expect them to debate it. If they fail to debate it, or do not want to
debate it, this is a factor for the people to determine the MPs' commitment to
people's rights.
If you want to put everything into law, obviously we will be flooded with laws.
What is the point of having a law when there is total lack of implementation?
We have seen police reports lodged and withdrawn. Statutory declarations made
and withdrawn. It is an offence under the law, yet no action has been taken. The
public is entitled to know why no action has yet been taken.
The police are here to serve the public. We receive a lot of reports from
complainants that their reports have not been investigated. We wrote to the
police. In most cases, we don't get a reply.
It is for that reason we are considering now whether it is appropriate, or if it
falls within the scope of our law, that we also hold a public inquiry in respect
of all these cases where the police have not taken action.
Q: Is it frustrating for you that you are criticised by civil rights groups
for not being empowered enough, and at the same time, the government ignores you
and does not give you the powers?
A: We have to do our work without fear or favour and not be
deterred by unfair criticism. What we do is to explain to people who want to
listen to our explanations. We can only hope that civil society will be very
objective in its criticism.
If you look at the report, it made an issue on the suitability of me being made
a member of the commission because I was involved in two cases that cut across
human rights principles.
One was habeas corpus cases in the Operation Lallang, (Operation Lallang was
carried out on Oct 27, 1987, by the police to crack down on opposition leaders
and social activists) and the other was the removal of those judges. And that is
their reason.
Another puzzling thing is that the cabinet wanted us to actively participate in
human rights activities but certain parties want to cut down our provision. It's
just not consistent.
A minister made a clear statement in Parliament that we are independent and we
should be given the financial freedom. But it is the government servants who
seem to undermine our independence.
I hope these government servants understand the government's objective in
establishing Suhakam and the purpose of setting it up.
A yardstick to gauge human rights
JUST days before the Human Rights Commission of Malaysia (Suhakam) was to play
host to the 13th Asia Pacific Forum of National Human Rights Institutions (APF)
last week, it found itself in a rather uncomfortable position.
It had been accused of not fully complying with international
human rights institution standards. And because of that, it stood the risk of
losing its A-status and being downgraded to B-status, which would bar it from
attending sessions of the United Nations Human Rights Council (UNHRC).
The four-day forum, held in Kuala Lumpur, had brought together APF members,
other national human rights institutions (NHRIs), United Nations agencies and
non-governmental organisations (NGOs) to discuss critical human rights issues
facing the region.
There were more than 200 participants from 31 countries in the Asia-Pacific
region.
Under normal circumstances, such a forum would have discussions on how human
rights defenders could work together to ensure that their governments complied
with human rights treaties and that human rights was respected, promoted and
protected.
Instead, Suhakam found itself having to repeatedly explain
itself to its guests.
Sessions which should have been spent discussing problems faced by NHRIs and
NGOs with regard to government machinery were instead partly spent with NGOs
asking why Suhakam could not achieve some things.
Suhakam had to defend itself and explain that it was limited in its actions by
the Suhakam Act, which prescribes the duties and powers of the commission.
Suaram (Suara Rakyat Malaysia) coordinator John Liu, who co-wrote the NGO report
that resulted in the International Coordination Committee of the National Human
Rights Institution (ICC) reviewing Suhakam's accreditation, said the intention
of the report was only to measure Suhakam against international standards set by
the Paris Principles, the international benchmark for establishing NHRIs.
Suhakam chairman Tan Sri Abu Talib Othman insisted that the Suhakam Act was not
inconsistent with the Paris Principles, and was appalled that the commission
could lose its coveted A-status "based solely on the report and criticism of
this one civil society group in this country".
Whenever decisions are made based on a potentially or allegedly lop-sided
recounting of facts, injustices, real or perceived, abound.
And this is why the Human Rights Council's new mechanism for measuring a
country's human rights situation is such a beauty.
Called the Universal Periodic Review (UPR), the mechanism calls for each of its
192 member countries to submit reports on the human rights situation in the
country once every four years.
The reports will be used at a review in Geneva to assess a country's
accomplishments and challenges over the last four years, and upon which
recommendations will be made for short, medium or long-term actions that the
country can apply to improve its human rights situation.
To gain an accurate picture of the human rights situation of the country, the
HRC relies on three types of documents to make up the report.
The first is a state report, 20 pages long, by the government. The second is a
10-page compilation of reports submitted by United Nation treaty committees
responsible for monitoring member states (like UNDP and Unicef). The third is a
10-page summary of reports submitted by NHRIs and NGOs.
The compilation report and the summary report are processed by the Office of the
High Commissioner of Human Rights (OHCHR) in Geneva, which culls together the
most important issues from all the reports sent in by the UN treaty bodies,
NHRIs and NGOs.
These reports are then translated into the six official UN languages, then
published and issued to all stakeholders to scrutinise and prepare questions six
weeks before the country's review session.
The true value of these reports, however, is in their preparation, which
requires that all parties consult and collaborate with each other to produce
comprehensive reports. Each report will have to detail its report-making
process, including whether or not it consulted any other party.
"Although it is not compulsory, states are encouraged to have a broad
consultation with stakeholders.
"So much so, that states have taken it as mandatory, and it is now almost a
convention," says International Centre for Human Rights and Democratic
Development director (Geneva office) Cynthia Gervais.
The spokesman of Human rights advocacy group Empower, Honey Tan Lay Ean,
believes when the state consults stakeholders, preferably province by province
and issue by issue, the state report would then be reflective of society.
"When Malaysia wanted to get elected into the UNHRC, it made commitments and
pledges -- one of which was good governance -- so that would include being
consultative," said Tan.
The good thing about the UPR process, said Women's Aid Organisation executive
director Ivy Josiah, is that it would force states and governments to
institutionalise engagement with civil society.
Gervais said that when preparing their reports, some countries which had had no
culture of consulting civil society had to set up structures for this, and had
found the process to be meaningful.
But while states have the advantage of 20 pages all to themselves, the more
complex consultation will have to be between the NHRI and NGOs.
Although each NHRI and NGO can send a five-page report to the OHCHR, the sum of
all these reports can only result in a 10-page summary. A coalition of NGOs can
send a 10-page report.
"Even if we put in 10 reports of 10 pages each, the bottom line is, we will end
up with five pages.
"The OHCHR, being in Geneva, will have to use their discretion and understanding
of local issues to decide on which issues to pick," said Tan.
"It's important to have as few reports as possible so that we pick what the
issues are."
Since the stakeholders report is due on Sept 8, Tan said a broad spectrum of
NGOs would be having their consultation on Aug 15.
Groups that are unable to come to Petaling Jaya for the meeting should send a
three-page report on the issues that concern them to Empower or Suaram by Aug 8.
Suhakam's Abu Talib said it would call for a consultation soon. The government's
deadline, meanwhile, is Nov 3.
NST Editorial: Righting wrongs of human rights
THE Human Rights Commission of Malaysia (Suhakam) has been given a year to state
why its status should not be downgraded from A to B by the International
Coordinating Committee of National Institutions for the Promotion and Protection
of Human Rights (ICC). The ICC feels Suhakam is not fully compliant with the
Paris Principles, which relate to the functioning of national human rights
institutions.
Understandably, Suhakam is unhappy. Its chairman Tan Sri Abu
Talib Othman says the body, established in 2000, has done its best but is being
constrained by provisions in the law which gave it birth, and the obstructionist
actions of certain government agencies. The ICC, says Abu Talib, wants
transparency in the appointment of Suhakam commissioners and their tenure as
commissioners to exceed the current two years. Suhakam had, Abu Talib adds,
suggested this to the government much earlier.
Can one blame the ICC for wanting to downgrade Suhakam when even our members of
parliament appear indifferent to the annual reports that, as required by law, it
presents to Parliament? Abu Talib laments that these are never debated. He has
reason to. So does everyone who voted them in. It seems rather ridiculous to
require Suhakam to present the report to Parliament and yet not debate its
contents.
Suhakam wants the Suhakam Act 1999 to be amended to give it more bite. The
government appears receptive, as evidenced by Deputy Prime Minister Datuk Seri
Najib Razak's remarks on July 30. Saying the government would consider public
views on improving the protection and promotion of human rights, he added that
any move to amend the act would have to be studied carefully. Fair enough.
Minister in the Prime Minister's Department, Datuk Zaid Ibrahim, said:
"Governments can no longer say they subscribe to the rule of law and yet
compromise on the issues of human rights." Particularly so, we might add, when
work has begun on establishing an Asean human rights commission.
For a start, the government could lean on ministries and departments which
disregard Suhakam, table Suhakam's annual reports for debate in Parliament and
ensure greater transparency in the appointment of commissioners. It would be but
an extension of its drive towards greater transparency and democratisation.
Suhakam, on its part, should explore avenues within its
existing framework to perform better. For instance, it could fully exploit the
provision for holding inquiries and hound those who have infringed on human
rights. It could also keep firing salvoes at those contemptuous of human rights
and shame them publicly. Then, perhaps, it will get an A for effort.
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