Why then are there so much skepticism and negative vibes in the Malaysian civil society to the Human Rights Commission in Malaysia Bill 1999. The DAP has our strong reservations and this is why right from the beginning, I had called on the government to ensure that the Human Rights Commission should not be an "alibi" institution to legitimise human rights violations in Malaysia.
But the skepticism and negative vibes are not just from the DAP or the other opposition parties. The reactions from the civil society has been generally negative.
Thus, Ramdas Tikamdas, the President of HAKAM, on behalf other NGO organisers of the "Forum on National Human Rights Commission Towards An Asean Mechanism" held at Equatorial Hotel, Kuala Lumpur on 3rd & 4th July 1999, such as ERA Consumer, SUARAM, said after the conference that although the Malaysian NGOs present at the Forum while welcoming in principle the Government’s move to initiate the Human Rights Commission, regretted the lack of transparency on the part of the government in the process of setting up of the Commission, as no prior notice had been given to the public to give feedback on the draft bill, the failure of the government to address the memorandum sent by 36 NGOs and political parties dated 18th May 1999 on the lack of consultation and the key concerns of independence and mandate of the proposed commission.
Although the government claims that it had drafted the Human Rights Commission Bill in accordance with the Paris Principles,a set of principles adopted by the Commission of Human Rights and the United Nations General Assembly to establish a blueprint or framework of reference for national institutions for the protection and promotion of human rights whatever their constitutional, legal or social setting, the Malaysian Government had failed to adhere to the Paris Principles.
The core of the Paris Principles on the functions and structure of a national commission of human rights is to bring all parts of the population, in particular the civil society, into the decision-making process in regard to human rights.
When the government rides roughshod over the views of the civil society in the formualtion of the Malaysian Human Rights Commission Bill, showing its habitual contempt and derision for the views of civil society, then the Malaysian Government has violated the fundamental core principle of the Paris Principles and the signs are not good that the Malaysian Human Rights Commission would be able to fulfil its statutory purpose to protect and promote human rights.
The skepticism and negative vibes from the people and the civil society to the National Human Rights Commission Bill goes deeper than the failure of the government to adhere to the Paris Principles in the establishment of the Human Rights Commission.
In the past four decades of Malaysian nationhood, human rights had been the greatest victim of the culture of political hegemony of the Barisan Nasional and its predecessor the Alliance.
In the past four decades, and in particular in the past 18 years of the Mahathir government, there had been a relentless erosion of fundamental rights and democratic freedoms of Malaysians, to the extent that there could be very little dispute that Malaysian democracy and human rights today are definitely worse off than when Mahathir first became Prime Minister in 1981 or when the country achieved independence in 1957.
Malaysians are not only living under four Proclamations of Emergency, as the States of Emergency declared in 1963 as a result of the Indonesian Confrontation, the Sarawak political crisis in 1967, the May 13 riots in 1969 and the Kelantan political crisis in 1977 had never been annulled and are all subsisting collectively, the most repressive laws of British colonial times to keep subjects under tight control have become even more draconian - as in the case of the Official Secrets Act, which makes Malaysia as the only Commonwalth parliamentary democracy which provides for mandatory minimum one-year jail sentence for any offence under the Act - institutionalising a more secretive government to protect corruption, cronyism and nepotism and going against the international trend towards a more open and accountable government, especially with the advent of the era of information techhnology.
How can the establishment of a National Human Rights Commission protect and promote human rights unless there is a dismantling of the repressive and draconian laws and measures like the Official Secrets Act, the Internal Security Act, the Printing Presses and Publications Act, the Sedition Act, the Police Act, and the four Proclamations of Emergency?
In fact the very existence of these repressive and draconian laws like the ISA, OSA, Printing Presses and Publications Act, Sedition Act, the Police Act serves notice that there could be no effective and credible Human Rights Commission in Malaysia to protect and promote human rights.
How can Malaysians be expected to be hopeful that the Human Rights Commission Bill mark a new beginning in the human rights policy of the Barisan Nasional Government, respecting and upholding human rights and fundamental liberties in the country, when the past 18 months had been one of the darkest chapters for human rights in Malaysian nationhood?
To give an idea as to how black and dark had been the past 18 months for human rights in Malaysia, I cannot do better than to quote the Human Rights Day Message 1998 given by Ramdas Tikamdas in his capacity as Hakam President on 10th December 1998, who said:
"On the occasion of the 50th Anniversary of the Universal Declaration of Human Rights, one would have hoped to celebrate positive developments in fundamental liberties, the rule of law and principles of natural justice. But unfortunately, the year 1998 will be recorded in our history as a period of nightmare for human rights.
"The human rights diary for 1998 began with the Lim Guan Eng episode being the focus of public concern raising grave constitutional issues in the context of parliamentary democracy and the oath of office of a Member of Parliament. This shameful saga will forever remain in the public conscience as a brooding reminder that law divorced from justice is like morality divorced from ethics, both leading ultimately to their own disrepute."
In his Human Rights Day Message 1998, the HAKAM President went on to enumerate the long catalogue of human right abuses for the past year, such as the "rampant abuse and misuse of the draconian Internal Security Act", "the alarming number of alleged criminals killed in police shootings raising the question as to what is reasonable force employed by the police in the apprehension of suspected criminals", "aggressive police reaction to the recent street demonstrations with water canons, truncheons, canes, police shields and police boots" and the infamous treatment of former Deputy Prime Minister, Datuk Seri Anwar Ibrahim, whether the Police Special Task Force storming Anwar’s residence to effect his arrest "with balaclava and an armoury of firepower as if they were storming a terrorist fortress" and the notorious Anwar’s "black-eye" treatment by the top police officer in the country.
With such a bleak human rights backdrop in the past 18 months, Malaysians are entitled to ask whether the Human Rights Commission is the result of government awareness that its human rights record had been abysmal and a blot to the national and international reputation of the country, and the urgent need to redeem the government's human rights image and rectify its human rights record.
Or is the Barisan Nasional completely unrepentant and unapologetic about its string of human rights abuses in the past 18 months, and its intention to set up a Human Rights Commission is merely to have an "alibi" institution to legitimise its human rights violations?
It is clear that the latter is the case. The Barisan Nasional government does not conceive the Human Rights Commission as an important initiative to protect and promote human rights, but as an important weapon in its psy-war arsenal to lend legitimacy to its human rights violations.
This is why the government is not prepared to comply with the essence of the Paris Principles to involve the civil society in the decision-making process in regard to the promotion and protection of human rights by allowing the fullest consultation process in the establishment of the Human Rights Commission, especially with regard to its credibility, independence and mandate.
This is also why the government has crippled the Human Rights Commission right from the beginning by giving a very restricted definition of human rights in the Bill.
Although the preamble of the Human Rights Commission Bill speaks about the "protection and promotion of human rights in Malaysia", Section 2 of the Bill in fact limited the definition of "human rights" to those human rights recognized by the Barisan Nasional government.
"Human rights" which are within the jurisdiction of the Human Rights Commission "refers to fundamental liberties as enshrined in Part II of the Federal Constitution", which are curtailed by various restrictive laws like the ISA, OSA, Printing Presses and Publications Act, Sedition Act, Police Act, Universities and University Colleges Act which are inconsistent with and contrary to basic human right principles based on universal standards.
Section(4)(4) of the Bill provides that the Commission is empowered to have regard to the Universal Declaration of Human Rights 1948 but only "to the extent that it is not consistent with the Federal Constitution".
This is a clear indication that the Barisan Nasional government does not intend the Human Rights Commission to really protect and promote human rights recognized by international human rights instruments, whether it be the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, but to justify these violations by claiming that the Constitution provides exceptions to their observance.
I fully support the call of NGOs and civil society that the Human Rights Commission Bill be referred to a Select Committee, for the definition of human rights in the Bill, which will determine its scope and mandate in the protection and promotion of human rights, is very important and there should be the fullest and most extensive public debate and discussion.
It is quite ridiculous to establish a Human Rights Commission whose human rights mandate is restricted to Part II in the Federal Constitution on fundamental liberties, as it will be redundant as the judiciary has full jurisdiction as the guardian of the Constitution.
The mandate of the Human Rights Commission should no less than the international standards of human rights as enshrined in the various international human rights instruments.
The Protection of Human Rights Act 1993 of India, for instance, defined "human rights" to mean "the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforced by courts in India" and "International Covenants" defined as meaning "the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on the 16th December 1966".
In the Philippines, the Commission on Human Rights Act 1998 gives the following definition for "human rights":
"Definition of Human Rights For purpose of this Act, unless the context indicates otherwise:
"Human Rights shall mean the supreme, inherent and inalienable right to life, to dignity, and to self-development. It is concerned with issues in both areas of civil and political rights and economic, social and cultural rights obligations to which the Philippines Government is a state party.
"Political Rights are those rights which enable us to participate in running the affairs of a government either directly or indirectly.
"Civil Rights are those rights which the law will enforce at the instance of private individuals for the purpose of securing to them the enjoyment of their means of happiness.
"Economic and social rights are those rights which enable the people to achieve social and economic development, thereby ensuring them their well-being, happiness and financial security.
"Cultural rights are those rights that ensure the well-being of the individual and foster the preservation, enrichment, and dynamic evolution of national culture based on the principle of unity in diversity in a climate of free artistic and intellectual expression."
The Select Committee on the National Human Rights Commission Bill should give all these definitions serious consideration.
The mandate of the National Human Rights Commission must the widest in scope, in keeping with international standards, if the National Human Rights Commission that is to be set up is not to become irrelevant to the protection and promotion of human rights, in the same way that the judiciary in Malaysia is swiftly becoming irrelvant to the dispensation of justice in the country!
The Government is fully aware that in refusing to ratify the International Covenants for Civil and Political Rights and Social, Economic and Cultural Rights, the Human Rights Commission will be working with tied hands.
If the Government is sincere in wanting a National Human Rights Commission to protect and promote human rights, then it should move forthwith to ratify the international human rights instruments, in particular the two International Covenants.
At present, there is no political culture of respect for human rights to allow the Human Rights Commission to operate effectively and independently to promote and protect human rights.
Last December, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Abid Hussain, released a damning report on Malaysia, after paying a five-day visit to Malaysia last October. He said that freedom of opinion is systematically curtailed in Malaysia, the domestic press muzzled and he was "deeply concerned" at the extent to which laws such as the Internal Security Act, the Sedition Act and the Printing Presses and Publications Act were used to supress or repress expression and curb peaceful assembly.
There was no official response whatsoever from the Government. As Syed Hamid Albar seems to have become not only the Foreign Minister but also the Minister charged with the responsibility for human rights, is he going to table an official government paper in Parliament to respond to the damning report on Malaysia of the UN Special Rappportuer on the promotion and protection of the right to freedom of opinion and expression?
Can the National Human Rights Commission as proposed by the Bill be effective? For instance, until the Operation Lalang mass arrests in 1987, Malaysians have recourse of redress to the courts to challenge the wrongful exercise of Ministerial discretions in detentions under the Internal Security Act. However, such a right to judicial review over Ministerial decisions in ordering ISA detentions was taken away in amendments to the Internal Security Act when Karpal Singh and I were still detained under the ISA in the Kamunting Detention Centre in 1988.
Although the Internal Security Act does not permit judicial review of Ministerial discretions in deciding on ISA detentions, any such wrongful misuse of Ministerial discretion to order ISA detentions are clear violations of human rights although they are no more challengeable in the courts of law.
However, can such complaints of abuse of discretion of Ministerial powers to order ISA detentions as an infringement of human rights be lodged with the National Human Rights Commission and can the National Human Rights Commission investigate into such complaints although the courts have lost the powers of judicial review.
This is different from Section 12(2) of the Bill which bars the Commission from inquiring 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 appeal; or (b) has been finally determined by any court.
Section 12(3) which provides that the Commission "shall immediately
cease to do the inquiry" if during the pendency of such inquiry the
allegation becomes the subject matter of any proceedings in any court have
too wide an ambit, and are open to considerable abuse to stymie the
Human Rights Commission from its task to protect and promote human rights
by the simple expdient of taking the matter to court.
This is another area which deserves further consideration which is another reason why there should be a Select Committee on the National Human Rights Commission Bill.
The Human Right Commissioners must often be strong critics of government if they are to be effective as monitors of human rights observance, as it is invariably the Government through its various agencies which would be in the dock for such human rights violations.
In a political culture where the government is so gun-ho to justify violation of human rights, including those enshrined in Part II on fundamental liberties of the Federal Constitution, do we have enough men and women of integrity who are prepared to stick their necks out to antagonise the powers that be?
For instance, Article 10(1)(b) of the Federal Constitution on the fundamental right of every citizen to "have the right to assemble peaceably and without arms" have been subjected to so many exceptions under Article 10(2)(b), permitting "such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof or public order", that such a fundamental "right to assemble peaceably and without arms" had been completely removed.
Last month, during the meeting between leaders of Opposition parties with the Inspector-General of Police, Tan Sri Norian Mai and members of the Police high command, I had suggested that the police should respect the constitutional right of Malaysians to peaceful assembly and peaceful demonstrations as enshrined in Article 10(1)(c), but the Inspector-General of Police held that public order and security in Malaysia did not permit the exercise of such a fundamental liberty.
Can we conceive of a situation where the National Human Rights Commission would be independent enough to investigate into complaints of police abuses of power in dispersing peaceful demonstrators with excessive force and come out with a finding against such police abuse of power but also to rule that a blanket police ban against peaceful demonstrations is an infringement of the fundamental right to peaceful assembly as enshrined in Article 10(1) of the Constitution?
It is for this reason that so much concern is centred on the independence of the National Human Rights Commission, which is represented by three important issues: the establishment of the Commission, membership and funding.
I have already spoken about the failings in the establishment of the Commission – where the civil society and the public have not been brought into its process. The Paris Principles laid down guidelines on the "Composition and guarantees of independence and pluralism" for the National Human Rights Commission, which among others, provided that "In order to ensure a stable mandate for the members of the national institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution's membership is ensured"
I had asked the Minister just now why the government had settled on a two-year tenure for Commissioners, which is too short and not conducive to conferring independence to the office. It is not good enough to explain that the Commissioner’s appointment is renewable, for this would subject the Commissioners to the pleasure of the Prime Minister, who as head of the executive would be most unhappy if the National Human Rights Commission is too diligent and conscientious in protecting and promoting human rights and put the government on the defensive.
India provides a five-year tenure for Human Rights Commissioners, while in the Philippines, the tenure for the Chairman of the Human Rights Commissioner is for seven years, while two Commissioners are appointed for five years and the other two for three years without reappointment.
Malaysia seems to be providing for the most number of Commissioners to be appointed, as under Article 5(1), the Commission shall consist of not more than 20 members. Section 7 (3) provides that the quorum at all meetings shall be two-thikrds of the number of members of the Commission and Section 7(4) provides that the members of the Commission shall use their best endeavours to arrive at all decisions of the meetings by consensus failing which the decision by a two-thirds majority of the members present shall be required.
The appointment of as many as 20 members to constitute the Human Rights Commission is most surprising, making it very unwieldy and difficult to protect and promote human rights. Although the government has indicated it would not be appointing all 20 members for the start, is such a provision a fall-back position to allow the government to stack the Commission with "yes-men" should the Commission be controlled by a two-thirds membership who might at any time have minds of their own and the courage to stand up against the Government on human rights issues?
The Bill provides that members of the Commission "shall be appointed from amongst prominent personalities including those from various religious and racial backgrounds".
Malaysians do not want the Human Rights Commission to be an "alibi" body to legitimise violations of human rights, but one with "teeth" and real powers to promote and protect human rights, without fear or favour especially of the government of the day.
This is why the Bill should be more specific with regard to the credentials of the commissioners, who should be Malaysians of proven integrity and competence and have been involved in human rights protection and promotion activities.
Vague formulas like "prominent personalities including those from various religious and racial backgrounds" are meaningless and highly susceptible to abuse, as best illustrated in the appointment of Senators under Article 45(2) of the Malaysian Constitution, which provides that Senators to be appointed by the Yang di Pertuan Agong "shall be persons who in his opinion have rendered distinguished service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service" .
Since Independence in 1957, hundreds of Senators have been appointed under this Article, but how many of them can stand out as really having "rendered distinguished service or have achieved distinction in the professions, commerce, industry, agriculture, cultural activities or social service"? Apart from a pitiful handful, the overwhelming majority of the Senators were and are mere party hacks or political has-beens which runs contrary to the very purpose and rationale for the setting up of a second legislative chamber in the country.
This is why the Human Rights Commission of Malaysia Bill should be more
specific as well as provide a mechanism to ensure that it does not end
up like the Senate, providing sinecures for political hacks and has-beens,
as in the establishment of a non-government selection committee comprising
MPs from both opposition and ruling parties as well as NGOs to vet all
nominations for the Human Rights Commission.
Finally, I call on the Minister to really abide by the Paris Principles of fully involving the civil society and the populace in all stages of decision-making process with regard to human rights by referring the Bill to a Select Committee to allow for the fullest and widest public consultation to prove that the government is not involved in a PR exercise but is genuinely concerned in establishing a Human Rights Commission which can genuinely protect and promote human rights.
Furthermore, the government should also initiate action to ratify the the basic UN instruments on human rights, in particular the International Covenant of Civil and Political Rights and the International Covenant of Social, Economic and Cultural Rights to be the basic source of reference and authority for the Human Rights Commission.