Media Statement – 3/11/2018
MALAYSIA, MAKE US PROUD AT UPCOMING UPR ON 8 NOVEMBER 2018 BY DEMONSTRATING
NEW GOVERNMENT’S COMMITMENT TO HUMAN RIGHTS, JUSTICE AND RULE OF LAW
-Abolish Death Penalty, Repeal Detention Without Trial Laws, Repeal
SOSMA, Sedition Act,…-
Malaysia’s Universal Periodic
Review(UPR) in Geneva will happen during the session beginning on 8 November
2018, which MADPET(Malaysian Against
Death Penalty and Torture) and possibly many others will see Malaysia, under a
new PH government, being more open and ready to accept recommendations, and
make positive commitments, even agreements, to ensure greater human rights,
justice and Rule of Law in Malaysia.
The Universal Periodic
Review(UPR) is a process where Malaysia’s human rights record will be reviewed
by other UN member states, who will also make recommendations on what Malaysia
should do to improve its state of human rights, justice and rule of law.
The UPR process, under the
auspices of the Human Rights Council, also gives opportunities to Human Rights
Defenders and Civil Society an opportunity to submit reports, arguments and
even recommendations. Many, including MADPET, would have done so and tried to
lobby other countries to highlight human rights failings, to urge Malaysia to be
more committed to human rights and Rule of Law in accordance to universal
standards.
Now, this UPR process leading to
the actual face to face session of review of Malaysia in a few days, began when
Malaysia was then governed by the previous Barisan Nasional(BN) government that
obviously had little regard to human rights, justice and rule of law.
Malaysia, in the past, has even
avoided ratifying or being a signatory to many of the fundamental UN human rights convention.
CORE HUMAN RIGHTS CONVENTIONS THAT MALAYSIA YET TO RATIFY
Being a member of the United
Nations, Malaysia accepts the Universal Declaration of Human Rights(UDHR), but
to date have failed to ratify or sign the International Covenant on Civil and
Political Rights(CCPR), International Covenant on Economic Social and Cultural
Rights(CESR). Without the ratification/signing of the CCPR and CESR, there is
really not a clear proclaimed commitment to the principles of human rights
found in the UDHR.
Now, that Malaysia has decided on
the abolition of the death penalty, there is also no more reason for Malaysia
not to ratify/sign the Second Optional Protocol to the International Covenant
on Civil and Political Rights Aiming Towards the Abolition of the Death Penalty(CCPR-OP2-DP);
Malaysia has also yet to ratify
important UN Conventions like the Convention Against Torture and Other Cruel
Inhuman and Degrading Treatment or Punishment(CAT) and the Optional Protocol of
the Convention Against Torture; Convention for the Protection of All Persons
From Enforced Disappearance(CED); International Convention on the Protection of
the Rights of All Migrant Workers and Members of their Families(CMW)
To date, Malaysia has only signed
on very few of the fundamental human rights convention being the Convention on
the Elimination of All Forms of Discrimination on Women (CEDAW), Convention on
the Rights of the Child(CRC) and the Convention on the Rights of Persons with
Disabilities(CRPD). Malaysia also ratified/signed certain Optional Protocols
relating to the Rights of the Child.
Many a country has ratified many
Human Rights Conventions and/or Treaties, but alas have failed to practice what
they have agreed to. It is a basic principle of international law that a State
party to an international treaty must ensure that its own domestic law and
practice are consistent with what is required by the treaty.
ONCE RATIFIED/SIGNED, UN CONVENTIONS MUST BECOME PART OF MALAYSIAN LAW
IMMEDIATELY
In some countries, once it is
ratified at the international level, the Convention may automatically form part
of national law. In other words, the Convention would be directly enforceable
by national courts and other implementing authorities.
In some other countries, the
legislature might have to adopt an act of ratification at the national level.
This may have the effect of incorporating the convention into domestic law.
Malaysia should pass a law that
ensure that any Convention once ratified/signed, shall automatically form part
of national law.
Alternatively, In Malaysia, this
may be done by the tabling of a Bill in Parliament to adopt and accept the
contents of the each and every Convention ratified/signed by Malaysia as part
of national law. This will be more tedious as it requires separate Bills to be
tabled every time a new Convention is ratified/signed.
MADPET believes this is best,
compared to the old BN government practice of amending all relevant
legislations to ensure compliance with the principles and contents of the
Convention already ratified/signed by Malaysia.
CEDAW, for example, was
ratified/signed in 1995, but the process of amending so many different
legislations to make it to be in compliance with the principles and content of
CEDAW has taken far too long – we are still not sure whether all relevant
Malaysian law has been amended to be in line with CEDAW. Same situation with
the CRC.
If however, CEDAW was
incorporated into Malaysian law by an Act of Parliament, then if in court, any
provision of some existing law is found not in compliance with CEDAW, judges could simply reject such laws or the
use of it on grounds that it is inconsistent with CEDAW.
This adoption of a Convention as part
of Malaysian law by Parliament enables our judges and courts to immediately consider
the arguments that certain provisions in certain written laws and past
judgments are in fact in contradiction
with the relevant United Nations Conventions that Malaysia has already
ratified/signed.
At the same time, existing
legislation will be amended to be in compliance with the UN Convention Malaysia
ratified/signed. Even if the courts later discover some provision in some law
that is not consistent with a Malaysia ratified/signed UN Convention, no
injustice if Malaysia has already by law made the Convention part of Malaysian
law. The odd law, discovered by court, to be non-compliant could then be simply
amended in the upcoming Parliamentary session.
MADPET hopes that this new
Malaysian government will take the position of immediately passing laws
recognising and accepting UN Conventions ratified/signed by Malaysia to be part
of Malaysian law.
The UPR process commenced when
Malaysia was still governed by the UMNO-BN government, and as such things would
have changed under this new Pakatan Harapan-led government, under Prime
Minister Mahathir Mohamad, who is seen as being more committed to justice,
human rights and the rule of law. There is, as such, a lesser need to push
Malaysia vide recommendations and lobby, as this new alternative government
would definitely do the needful to ensure that there is greater justice, human
rights and rule of law in Malaysia.
The call to abolish death
sentences and protect the rights of the indigenous people were the top two
recommendations given to Malaysia by most United Nations members at the last
UPR of Malaysia in October 2013(Malay Mail, 25/10/2013) – but following recent
Cabinet decision to abolish the death penalty, and the assurance that the
relevant Bills will be tabled in the current Parliamentary session that will
end on 11/12/2018, UN member nations and others may likely use their limited about
3-minute intervention to make recommendations in other areas of human rights.
MADPET calls on Malaysia to take this upcoming UPR as an opportunity to commit to
ratifying/signing all outstanding fundamental human rights including Convention
Against Torture and the covenants to the Universal Declaration of Human
Rights(UDHR) including the International Covenant on Civil and Political Rights
Aiming Towards the Abolition of the Death Penalty(CCPR-OP2-DP);
MADPET also calls on Malaysia to immediately put into effect the policy
that ratified/signed UN Conventions are immediately made part of Malaysian law,
which could be done speedily by an Act of Parliament rather than present
practice of slowly amending various legislations which delays application and
reliance on principles and values in Malaysia ratified/signed UN Conventions;
MADPET urges Malaysia to expedite the passing of Acts of Parliament
that will abolish the death penalty, and also those draconian Detention Without
Trial Laws;
MADPET also urges that the Sedition Act and other draconian provisions
in laws affecting freedom of expression, opinion, media and peaceful assembly
be repealed so that all in Malaysia can effectively begin to experience such
human rights, which have been long denied by the former UMNO-BN regime.
MADPET urges that government will makes Malaysians proud during the UPR
of Malaysia by a demonstration of the highest commitment to human rights,
justice and Rule of Law.
Charles Hector
For and on behalf of
MADPET(Malaysians Against Death Penalty and Torture)
KOTA
KINABALU: The Sabah Law Society (SLS) has voiced support for the push
by de facto law minister Liew Vui Keong to abolish the death penalty and
impose a moratorium on all executions until then.
