CONSTITUTIONAL SOLUTIONS MUST BE AT THE FOREFRONT OF ALL HUMAN RIGHTS CONCERNS – CENTHRA
22 June 2016 | 17 Ramadhan 1437
The Centre for Human Rights Research and Advocacy (CENTHRA) notes the recent appointment of YBhg. Tan Sri Razali Ismail as the new Chairman of the Human Rights Commission of Malaysia for the 2016-2018 term. We further note that he takes his post as a commissioner of human rights along with seven others, namely YBhg. Professor Dato’ Dr. Aishah Bidin, Mr. Francis Johen Adam, YBhg. Dato’ Mah Weng Kwai, YBhg. Datuk Godfrey Gregory Joitol, YBhg. Dr. Nik Salida Suhaila binti Nik Salleh, Mr. Jerald Joseph and YBhg. Datuk Lok Yim Pheng. CENTHRA wishes the new commissioners the best on their appointment but we reserve our position on the wisdom of the same, subject to our own periodical scrutiny of their performance in the years to come.
The SUHAKAM commissioners derive their appointment from the Human Rights Commission of Malaysia Act 1999 [Act 597] of which section 5(2) stipulates that such appointments are to be made by the Yang di-Pertuan Agong on the recommendation of the Prime Minister, who shall, before making such a recommendation, consult the views of a committee established under section 11A of the Act, which is the result of a 2009 amendment. The committee itself includes at least three members of civil society who have knowledge of or practical experience of human rights matters, appointed by the Prime Minister (section 11A(1)(c)). Further section 5(3) states that commissioners shall be appointed from men and women of various religious, political and racial backgrounds who have knowledge of, or practical experience in, human rights matters. This is in line with the Principles relating to the Status of National Institutions, otherwise known as the Paris Principles, in which various backgrounds of social forces in civil society must be given due representation in national human rights commissions around the world, including Malaysia.
However, these appointments must be done taking into account the significance of national and regional particularities and various historical, cultural and religious backgrounds, as acknowledged by the Vienna Declaration and Programme of Action 1993 (VDPA 1993) which precedes the Paris Principles and on which the Paris Principles are based. As such we have serious concerns on the suitability and ability of some of the commissioners, who do not, in our view, have the ability nor capability to effectively represent the valid religious and ethnic concerns of various communities of differing faiths and disparate ways of life present within Malaysia. Commissioners must also have extensive knowledge in local as well as global issues affecting human rights, which we at CENTHRA do not believe this present composition of commissioners appointed possess.
Section 4(4) of Act 597 stipulates that in the exercise of their functions, the commissioners shall have regard to the Universal Declaration of Human Rights (UDHR) insofar as the same does not contradict the Federal Constitution. This would mean that efforts to further human rights based on the UDHR in Malaysia cannot go against national principles stipulated by our apex law. It has been affirmed time and again by various legal experts that there are a number of fundamental features contained within our Constitution, namely the position of Islam as the religion of the Federation (Article 3(1)), citizenship based on the social contract (Part III), Malay as the national language (Article 152), the special position of Malays and legitimate interests of other communities (Article 153) and the prerogatives, sovereignty and jurisdiction of the Malay rulers (Article 181). The basis for their significance is their putting beyond the question of anyone within Malaysian society, including Members of Parliament, by virtue of section 3(1)(f) of the Sedition Act 1948 and constitutional provisions protecting the same, namely Articles 10(4) and 63(4) of the Federal Constitution.
CENTHRA thus strongly urges that all commissioners of SUHAKAM newly appointed shall have due regard for these constitutional provisions, and conduct their work with due regard being had for the same. This is particularly significant in human rights areas regarding freedom of religion, equality, freedom of speech, assembly and association as well as other connected matters. CENTHRA reminds the commissioners that freedom of religion is not an absolute right in Malaysia, as Article 11(4) restricts the propagation of non-Islamic creeds towards Muslims. Equality is also subordinate to any discrimination authorised by the Federal Constitution, as the wording of Article 8(2) thereof makes clear. Further, freedom of speech, assembly and association are subject to due limitations taking into account the necessity of public order to ensure racial and religious harmony prevails to create the peaceful conditions necessary to sustain our national economy. These limitations of human rights must not be viewed as a handicap, but rather an affirmation that the collective good, a right as any other, trumps individualist views on human rights. Whatever solution to any human rights conundrum we face, therefore, requires solutions that are in conformity with our Federal Constitution.
CENTHRA also expects that human rights matters will not be looked at by the commissioners primarily through a Western absolutist sense but in a way that takes into account the letter as well as spirit of our Federal Constitution and our status as an Asian as well as Muslim majority nation. Local cultures and particularities must absolutely be given prominence and consideration in the determination of our human rights priorities and concerns, as acknowledged by the VDPA 1993. Further, CENTHRA views with concern the neglect of certain areas of social, economic and cultural rights, such as consumer protection and employee rights, by previous SUHAKAM commissioners as they have focused solely on civil and political rights, and hopes that the present board of commissioners will rectify this lop-sidedness and give due emphasis on these neglected areas of human rights.
CENTHRA looks forward to working with SUHAKAM on furthering the cause of rights and freedoms in Malaysia, in conformity with our Federal Constitution.
Azril Mohd Amin
Advocate & Solicitor |
Chief Executive, Centre for Human Rights Research and Advocacy (CENTHRA)