The Malaysian Bar welcomes the progressive step taken towards the enhancement of human rights in Malaysia through the passing of the Human Rights Commission of Malaysia (Amendment) Bill 2023 (the “Bill”).1
One of the notable reforms introduced via the Bill is the establishment of a Chief Children Commissioner (“CCC”) and Children Commissioners, pursuant to section 4 of the Bill.
It is the Malaysian Bar’s observation that while the provision serves to empower the Human Rights Commission of Malaysia (“SUHAKAM”)’s Office of the Children’s Commissioner (“OCC”) through the appointment of the CCC, exemplary practices from foreign jurisdictions, such as New Zealand,2 indicate that further robust efforts should be undertaken in the statute to, inter alia, “promote the establishment of accessible and effective complaints mechanisms for children and to monitor the nature and level of complaints”.3
Further improvements can also be made to insulate SUHAKAM from direct or indirect influence from the Executive branch of the Government, as was raised by the Malaysian Bar on several occasions, and most recently via our correspondence to the Law and Institutional Reform Minister and Deputy Minister, and to SUHAKAM, on 25 October 2023. The guiding international principles that form the basis of the establishment of SUHAKAM expressly provide that the institution must “be independent of the Government and not be subject to financial control which might affect its independence”.4
A perusal of sections 7 and 8 of the Bill further indicates that the Prime Minister is conferred the power to appoint members of an Investigation Tribunal and can determine the allowances rendered to members of the SUHAKAM Investigation Tribunal and Commission, as established pursuant to section 11A of the Human Rights Commission of Malaysia Act 1999 (“HRC Act”).
Though section 3 of the Bill provides that the appointment of SUHAKAM Members shall consist of at least one representative from amongst persons with disabilities and at least 30 per cent of representatives from amongst women — a commendable effort premised on diversity and inclusivity — the proposed provision remains in the blemishes of existing provisions in the HRC Act, specifically section 5(2), which still heavily involves the Prime Minister in the appointment of SUHAKAM Members. The approach to be taken should always be centred upon decentralisation of powers from the Prime Minister, so that an independent and standalone SUHAKAM can take its place and flourish.
Furthermore, section 2(a) of the Bill which seeks to amend section 4 of the HRC Act to expressly provide power to SUHAKAM to visit places of detention and institutions, continues to subject its access to procedures as may be prescribed by written laws or as specified in guidelines. Fine words butter no parsnips in such a Bill, as even with the proposed amendment, access to places of detention and institutions may be delayed if SUHAKAM’s access is curbed by the imposition of guidelines such as the requirement that prior notice is to be given before access can be granted, as this may very well defeat the true purpose of SUHAKAM’s objective in seeking access to places of detentions and institutions.
As for missed opportunities, the Malaysian Bar asserts that the Bill could have expanded the definition of “human rights” in section 2 of the HRC Act to include other provisions of the Federal Constitution, beyond Part II thereof, to include issues of citizenship, the establishment of Parliament and voting issues. Such an expansion is also overdue for section 4(4) of the HRC Act, wherein SUHAKAM’s purview should have extended beyond the UDHR5 to also include CEDAW,6 and CRC7 and its two Optional Protocols on the sale of children, child prostitution and child pornography, as well as the involvement of children in armed conflict.
Additionally, in strengthening the functions and powers of SUHAKAM pursuant to section 4 of the HRC Act, amendments should have been made to include a provision which allows SUHAKAM to inquire generally into any matter which may involve the infringement of human rights — as can be seen in other exemplary jurisdictions, such as New Zealand.8 Amendments are also due to authorise SUHAKAM to conduct mediation, conciliation and negotiation between parties in order to resolve disputes relating to human rights, as practised in South Africa.9
The internal mechanism of SUHAKAM to investigate its own wrongdoings must also be refined so that circumstances such as allegations of abuse and racial bias within SUHAKAM itself,10 can be addressed independently and expeditiously.
The above shortcomings serve as an indication that room for further improvements to the Bill — as recommended in detail by pivotal stakeholders prior to it being tabled at Parliament — should have been taken into account for the Bill to be properly debated. A meaningful engagement with pivotal stakeholders encompasses more than just a briefing session and a collation of superficial responses — such engagement sessions must involve several evocative discourse, with points raised by stakeholders being taken seriously and incorporated into a Bill, unless proper justifications are given why those points cannot be incorporated.
The Malaysian Bar remains committed to continuously engaging constructively, and contributing towards the refinement of this critical legislation, before its implementation, for we believe that a strong and independent SUHAKAM is fundamental to the protection and promotion of human rights and dignity of all Malaysians.
Karen Cheah Yee Lynn
1 December 2023
1 “Amendments to Suhakam Act passed, human rights watchdog to get more bite”, The Star, 29 November 2023.
2 Children’s Commissioner Act 2003 (New Zealand).
3 Ibid, section 12.
4 Principles relating to the Status of National Institutions (The Paris Principles), General Assembly Resolution 48/134, The Office of the High Commissioner for Human Rights website.
5 Universal Declaration of Human Rights, 1948.
6 Convention on the Elimination of All Forms of Discrimination against Women, 1979.
7 United Nations Convention on the Rights of the Child, 1989.
8 Section 5(2)(h), Human Rights Act 1993 (New Zealand).
9 Section 14, South African Human Rights Commission Act, 2013.
10 “Factionalism splits Suhakam as campaign to oust chairman gains pace”, Malaysia Now, 16 June 2023.