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Seat
for Suhakam; Paris Principles brushed under carpet
The Malaysian
Commission does not measure up to the minimum standards for
national institutions
Given
the absence of any regional Asian human rights mechanism, the
Asia Pacific Forum of National Human Rights Institutions (APF)
should be commended for its inclusive approach to institution
building. Except when the privilege of membership rewards
institutions that have yet to conform to the Paris Principles
at even the most basic level.
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The
Malaysian Human Rights Commission (Suhakam) is one such
institution: its mandate fails to guarantee the type of
independence, composition, and adjunct powers that are
clearly explicated in the Paris Principles.
Section
five of the Malaysian Human Rights Commission Act states
that members will be appointed by the king, or
"Yang di-Pertuan Agong [the Supreme head of the
Federation], on the recommendation of the Prime
Minister."
There
is no system of checks and balances to ensure that the
appointment process is politically neutral.
The Act does not enumerate limits on who may be
appointed, other than §5(3), which says the
Commissioners shall represent different religious and
racial backgrounds. The Act does not specify limits on
reappointments. Neither is there a prescribed manner in
which the public or public interest organisations may
participate in the selection process.
While
the Act does specifically lay out the criterion and
procedure for removal of a
member from the commission in §10, its words may
prove hollow in practice as the decision to dismiss a
member may be based on the "opinion" of the
Yang di-Pertuan Agong. The Act does not enumerate a
standard of proof that must be met or provide that the
"opinion" have a reasonable basis. |
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Head
counts
The
composition of the original 13 members of the
Commission appeared to reflect diversity.
However, in addition to former Chairman Tan
Sri Musa Hitam, five members of the Commission
were replaced with new appointments. While Suhakam
officially maintains that the backgrounds of these
Commissioners meet the requirements of the Paris
Principles, one cannot ignore that all but one of
these Commissioners held a high-ranking government
position before being selected to serve on the
panel. In May 2002 the Malaysian Bar Council noted
that the three non-reappointed Commissioners were
among the most visibly effective and courageously
outspoken members of the Commission. This
sentiment was echoed by local NGOs. |
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Section
19 (1) of the Act states that funding for the commission will
come from the government.
It states the funding will consist of
"adequate" annual funds, but does not specify how
such adequacy will be measured.
Section 19(2) limits the sources of funding by saying
it may not come from foreign sources, though §19(3) leaves
open the possibility of extra funds, restricted to the purpose
of public awareness and education, that may come from
individuals or organisations.
Section
22 allows the Minister of Foreign Affairs to make regulations
and affect the procedures the commission follows in pursuing
inquiries.
This
is directly contrary to the recommendation of the UN Handbook
that the commission establish its own procedures and that they
not be subject to external modification.
The
definition provided for "human rights" in §2 of The
Act is: "fundamental liberties as enshrined in Part II of
the Federal Constitution."
This
definition is of concern because, while the Constitution
guarantees many human rights, Malaysian laws often fail to
preserve these rights even though they may be declared
consistent with the Constitution.
Section
13(2) of the Act states that once a human rights infringement
is discovered the Commission may not take action on its own,
but may only "refer the matter, where appropriate, to the
relevant authority or person with the necessary
recommendations."
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The
Act does not provide for any enforcement mechanism or
ability to effect change or bring about actual relief.
Suhakam does not have any alternative dispute
resolution capacity.
Nor may it sanction the government or others.
The
Act does not provide a procedure for filing complaints.
The
last clause of section 15(2) qualifies a witness'
immunity from legal action based on testimony
by stating: "except when the person is
charged with giving or fabricating false evidence."
This
clause may undermine protection for many witnesses
because a charge of contempt is a common occurrence in
Malaysia. |
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Dubious choice
The
appointment of the current chairman, Tan Sri Abu
Talib Othman, has been controversial. As Attorney
General in 1987, he publicly defended the use of
the Internal Security Act during Operation Lalang.
He was a member of the government prosecution team
during the 1988 impeachment of former Lord
President Tun Salleh Abas and five Supreme Court
judges, an episode now referred to as the judicial
crisis that marked the downfall of the
independence of the Malaysian judiciary. |
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