Malaysia’s stand in the second Universal Periodic Review
By Patricia Hului
If you do not know what the Universal Periodic Review (UPR) is, then you should: it’s a mechanism which involves a regular review of human rights records of all 193 United Nation (UN) member states, including our country.
Imagine it like a test our country has to go through in order to prove how well we are at upholding our citizens’ human rights.
UPR was established when the Human Rights Council was created on Mar 15, 2006 by the UN General Assembly.
Malaysia went through its first UPR back in 2009 and its second one in 2013. Three key documents form the basis of the UPR from state, Office of the United Nations High Commissioner for Human Rights (OHCHR) and stakeholders.
The important document is the stakeholders’ report which is compiled by OHCHR based on National Human Rights Institution (NHRI) and civil society organisation (CSO) or non-governmental organisation (NGO) submissions.
Thus, according to Human Rights Commission of Malaysia (Suhakam) principal assistant secretary Wan Kasim Wan Kadir in the UPR process, the NHRI and NGO have an important role to play especially in submitting independent reports to the council to provide their perspectives on the situation of human rights in the country.
In one stage of UPR, the state under review (SUR), Malaysia, for example, will present its national report in an interactive dialogue session where all UN member states have the opportunity to pose questions, comments and recommendations.
Wan Kasim said the SUR may accept, reject or comment on the recommendations and the outcome report would outline the number of recommendations received, accepted, rejected, noted and responded in writing.
Wan Kasim emphasised, “It is the role of the government to primate and implement these recommendations.”
As for Malaysia, the country had several responses to the recommendations such as ‘accepted in full’, ‘accepted in principle’, ‘accepted in part’ and ‘rejected’.
The government defined ‘accepted in full’ as recommendations accepted in full indicating Malaysia’s support while ‘accepted in principle’ meant the government was taking steps towards achieving the objectives of the recommendations but under certain conditions.
Meanwhile the government did not provide a specific definition for recommendations that were accepted in part except that it provided detailed clarification and responses.
These are some of the recommendations from other countries and the Malaysian government’s position and responses to them:
1.Expand the protection scope for migrants and their families and continue efforts to enhance the safety and welfare of foreign workers (Philippines)
The government responded that the protection scope for migrant workers in Malaysia extended to documented foreign workers excluding their family members.
“Every person entering Malaysia, including the Immigration Act are afforded protection under the law, as appropriate.
“Malaysia maintains that decisions on the possible naturalisation or the regularisations of status of aliens residing in the country are sovereign matter.”
2. Revise the Peaceful Assembly Act so that there is no discrimination and hindrance in the organisation of peaceful public gatherings and protests (Czech Republic)
Malaysia has no plans to revise the Peaceful Assembly Act 2012.
The government believed that the act was enacted to ensure that all citizens had the right to organise assemblies or to be able participate in assemblies, peaceably and without arms.
3. Cease the practice of detaining trafficking victims, and allow them to travel, work and reside outside government facilities (United States of America)
Malaysia does not detain victims of trafficking.
However, victims are required to reside in shelters provided for and gazetted by Malaysia with a view to afford them better protection and safety.
4. Allow for the visit of the UN Special Rapporteur on the rights of indigenous peoples (Denmark)
Malaysia defended that there was already a task force comprising senior government officials, civil society representatives and academicians who were in the process of determining, inter alia, details on which recommendations could be implemented over the short, medium and long term.
The report read, “As the government does not wish to pre-judge the outcome of the task force’s deliberations, Malaysia is unable to accept these recommendations at this juncture.”
5. Take steps to resolve the conflicts of competence between civil and Syariah courts, with a view to fully protect human rights (Austria)
According to Article 121(1A) of the Federal Constitution which states, inter alia, that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts clearly demarcates the jurisdiction of the two legal systems in Malaysia.
Malaysia maintained that there was no conflict of competence between the civil and Syariah courts in the country.
Wan Kasim pointed out that Malaysia during the first UPR had actually implemented one or two recommendations which the government initially did not support such as the abolition of the Internal Security Act (ISA).
Here in Sarawak, Suhakam vice-chairman Datuk Dr Khaw Lake Tee announced that State Planning Unit (SPU) had been appointed as the state’s focal agency to look at UPR.
“We hope that SPU can hold discussions with NGOs and CSOs,” she said.
By doing so, Khaw recommended SPU to work with NGOs to learn more issues on the ground for more meaningful and effective implementation of the recommendations.
She also hoped that the Sarawak government could actively brief Sarawakians on UPR through SPU.
Malaysia is due for its third UPR review in 2018.