For
your information, Malaysia has published its response to the
recommendations made during its review last November (see the attached
full report), and has accepted most of the death penalty ones.
It has fully accepted the following recommendations:
- 151.91 Establish a de facto moratorium on the death penalty with a view to its abolition (Portugal);
- 151.92 Ensure the adoption of the necessary legislation to abolish the death penalty in a timely manner (Republic of Moldova);
- 151.93
Continue to take steps for the abolishment of the death penalty and to
revise the cases of persons on death row (Romania);
- 151.95 Establish a moratorium on the death penalty pending an act of Parliament to abolish it (Albania);
- 151.97 Continue with abolishing the death penalty and adopt a moratorium on the execution of the death penalty (Spain);
- 151.98 Take further steps in limiting capital crimes with the aim of abolishing the death penalty (Cyprus);
- 151.99 Intensify its efforts towards the abolition of the death penalty (Georgia);
- 151.100 Immediately place a moratorium on the application of the death penalty with a view to its complete abolition (Fiji);
- 151.104 Consider the adoption of a moratorium on executions (Italy);
- 151.106 Concretize the commitment of abolishing the death penalty as soon as possible (Switzerland);
- 151.107 Abolish the death penalty (Norway);
- 151.108 Introduce a moratorium on executions with a view to abolishing the death penalty (Paraguay);
It has partially accepted the following ones, with an aim to fully accept them in the course of the implementation cycle:
- 151.94 Complete legislative efforts aimed at abolishing the death penalty (Ukraine);
- 151.96
Ensure early submission to Parliament of legislation abolishing the
death penalty and repealing the Sedition Act (Australia);
- 151.102 Maintain the recent moratorium on executions and completely abolish the death penalty (France);
- 151.103 Swiftly pass all necessary legislation to abolish the death penalty for all criminal offences (Germany);
- 151.105 Improve and implement legislation for the complete abolishment of the death penalty (Sweden);
ð The following justification was given: “The
Government has announced on 10 October 2018 that the death penalty will
be abolished. The announcement was made following the Cabinet’s
decision for the Pardons Board to review their decision to reject the
clemency request on death sentence and to consider replacing it with
life imprisonment. A moratorium has also been imposed on all executions
for death row inmates who have yet to be considered by the Pardons
Board. Once the necessary legislation amendment for the abolition of the
death penalty is deliberated at Parliament and endorsed, the
recommendations will thereafter be fully accepted.”
It has noted
the following ones (yet it has emphasized that even the noted
recommendations would remain under consideration in the next few years):
- 151.101 Fully abolish the death penalty without delay (Finland);
o The following explanation was given for this response: “[…]
With regard to the death penalty, once the amendment to the necessary
legislation for the abolition of the death penalty is tabled before and
passed by Parliament, the related recommendations will thereafter be
accepted.”
- 151.37
Ratify the Second Optional Protocol to the International Covenant on
Civil and Political Rights, aiming at the abolition of the death penalty
(Montenegro);
o The following explanation was given: “The
Government of Malaysia reaffirms its commitment to ratify all remaining
international human rights instruments. However, there is a need to
achieve precise and full understanding of the relevant rights and
obligations as well as to consider the possibility of reconciling any of
the standards established by the said instruments with those embodied
in long-standing domestic laws, traditions and circumstances as well as
philosophy, as reflected in the Federal Constitution of Malaysia. As a
responsible member of the international community, Malaysia has always
taken into consideration its commitment and ability to fulfil the
entailing obligations before becoming a signatory to any international
instruments. With regard to the reservations made for the instruments
that Malaysia has acceded to, these reservations will still be retained
due to their inconsistency with the Federal Constitution, law and
national policies. Nevertheless, consultations with the relevant
Ministries and civil society organisations are ongoing to pursue the
ratification of suitable conventions.”
Thank you Jeanne Hirschberger, Assistante programmes / Programme support officer of ECPM
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A/HRC/40/11/Add.1
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Advance
Version
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Distr.: General
18 February 2019
Original: English
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Human Rights Council
Fortieth session
25
February–22 March 2019
Agenda item 6
Universal
Periodic Review
Report of the Working Group on
the Universal Periodic Review*
Malaysia
Addendum
Views on conclusions and/or
recommendations, voluntary commitments and replies presented by the State under
review
Malaysia’s position on the recommendations received during the third
Universal Periodic Review (UPR) on 8 November 2018
1. Malaysia sees the UPR as an exemplification
of positive dialogue between friends and as a forum for sharing of best
practices in the field of human rights under the United Nations Human Rights
Council. Malaysia’s Third UPR has provided us with an avenue for a constructive
and frank assessment on our achievements and shortcomings.
2. This is in tandem with the spirit of the
Malaysian Government in placing greater importance and urgency on issues of
human rights while at same time recognising the difficult steps and challenges
which we have to undertake.
3. During its Third UPR, Malaysia received a
total of 268 recommendations put forward by 108 Member States. In deliberating
the recommendations, the Government discussed with all relevant stakeholders
which involved the civil society organisations (CSOs), Human Rights Commission
of Malaysia (SUHAKAM), Ministries and Agencies at both the Federal and State
levels.
4. Malaysia is pleased to accept 147 recommendations in full (outright) and 37 recommendations
are accepted in part. Outright acceptance is whereby the Government of
Malaysia is able to adhere fully to the principles and spirit of the
recommendations. On the other hand, those accepted in part means that the
Government of Malaysia agrees with and is able to implement part of the
recommendations due to existing Government policies or position.
5. Malaysia also takes note of 84
recommendations due to several reasons, which amongst others being in
contradiction with the Federal Constitution or existing laws. In addition to
that, some recommendations which were made were formulated based on inaccurate
assumptions or assertions.
6. Nonetheless, the Government of Malaysia
wishes to emphasize that all recommendations accepted in part or noted will be
regularly reviewed taking into consideration its domestic development and
international obligations. It is therefore fluid in nature.
Recommendations fully accepted by
Malaysia
7. 151.5, 151.6, 151.9, 151.24, 151.26, 151.31,
151.44, 151.47, 151.49, 151.50, 151.51, 151.52, 151.53, 151.54, 151.58, 151.59,
151.61, 151.62, 151.63, 151.64, 151.65, 151.66, 151.67, 151.68, 151.70, 151.71,
151.72, 151.73, 151.74, 151.75, 151.76, 151.86, 151.87, 151.88, 151.89, 151.90,
151.91, 151.92, 151.93, 151.95, 151.97, 151.98, 151.99, 151.100, 151.104,
151.106, 151.107, 151.108, 151.114, 151.116, 151.117, 151.118, 151.119,
151.120, 151.121, 151.122, 151.123, 151.124, 151.125, 151.128, 151.130, 151.135,
151.136, 151.139, 151.143, 151.147, 151.148, 151.149, 151.153, 151.154,
151.155, 151.156, 151.157, 151.158, 151.159, 151.160, 151.161, 151.162,
151.163, 151.164, 151.165, 151.166, 151.167, 151.168, 151.169, 151.170,
151.171, 151.172, 151.173, 151.174, 151.175, 151.176, 151.177, 151.178,
151.179, 151.180, 151.181, 151.182, 151.183, 151.184, 151.185, 151.186,
151.187, 151.189, 151.191, 151.192, 151.193, 151.194, 151.200, 151.201,
151.202, 151.203, 151.204, 151.205, 151.206, 151.207, 151.210, 151.211,
151.214, 151.216, 151.220, 151.221, 151.222, 151.223, 151.226, 151.229,
151.230, 151.231, 151.233, 151.244, 151.245, 151.246, 151.247, 151.248,
151.249, 151.250, 151.252, 151.253, 151.254, 151.256, 151.257, 151.259,
151.261, 151.264, 151.265, 151.266 and 151.267.
Recommendations partially accepted
by Malaysia
8. 151.8, 151.19, 151.29, 151.34, 151.35,
151.43, 151.94, 151.96, 151.102, 151.103, 151.105, 151.110, 151.115, 151.126,
151.134, 151.137, 151.138, 151.140, 151.141, 151.144, 151.145, 151.146, 151.188,
151.195, 151.196, 151.197, 151.198, 151.224,
151.225, 151.227, 151.234, 151.235, 151.238, 151.241, 151.243, 151.251 and 151.263.
Clarification for the
partially accepted recommendations
1. International instruments and dual legal system
Recommendations 151.8,
151.19, 151.29, 151.35 and 151.43
9. The Government of Malaysia commits itself to
ratifying all remaining core international human rights instruments as stated
by the Prime Minister at the 73rd session of the United Nations
General Assembly. The Government of Malaysia has always adhered in principle to
the fundamental values expounded in the core international human rights
treaties. Notwithstanding that, the signing and ratification by Malaysia will
be carried out after in-depth consultation with all relevant stakeholders. The
Government of Malaysia will also want to ensure that it will be in a position
to fulfil its international obligations entailed following the signing or
ratification of the treaties.
10. The jurisdiction of the Civil and Syariah
Courts in Malaysia is provided for under the Federal Constitution. The
Government of Malaysia will continue to take steps to further harmonise these
dual legal systems.
2. Migrant workers
Recommendations 151.34
and 151.263
11. Malaysia will continue to protect and promote
the rights of migrant workers in line with the International Labour Standards
as well as regional instruments in accordance with relevant domestic
legislations. To date, all foreigners have access to medical services including
sexual and reproductive health at private or public health services subject to
charges according to the Fees Act 1951.
3. Death penalty
Recommendations 151.94,
151.96, 151.102, 151.103 and 151.105
12. The Government has announced on 10 October 2018
that the death penalty will be abolished. The announcement was made following
the Cabinet’s decision for the Pardons Board to review their decision to reject
the clemency request on death sentence and to consider replacing it with life
imprisonment. A moratorium has also been imposed on all executions for death
row inmates who have yet to be considered by the Pardons Board. Once the
necessary legislation amendment for the abolition of the death penalty is
deliberated at Parliament and endorsed, the recommendations will thereafter be
fully accepted.
4. Corporal punishment and enforcement
Recommendation 151.110
13. Malaysia wishes to emphasize that the valid and
legal forms of corporal punishments such as whipping and caning as prescribed
under its domestic laws will only be carried out upon the direction of the
Courts.
14. Nonetheless, the relevant national legislation
has been strengthened through the review of Law and Standard Operating
Procedure (SOP) and establishment of the Enforcement Agency Integrity
Commission (SIAP) to prevent the torture and ill-treatment by enforcement agencies.
5. Trafficking in persons
Recommendation 151.115
15. The Government of Malaysia will always assist
victims of trafficking in persons within the ambit of its legal jurisdiction,
with the ultimate aim of ensuring the safe return of the victims to their home country.
6. Security Act and human rights defenders
Recommendations
151.126, 151.137, 151.138, 151.140, 151.141, 151.144, 151.145 and 151.146
16. A Special Committee has been established to
review several laws including the
Sedition Act 1948, Printing Presses and Publications Act, POCA, SOSMA, Peaceful
Assembly Act 2012 and POTA. The recommendations proposed by the Special
Committee will be submitted to the Cabinet for consideration. The Government
will take into account its international human rights obligations while making the
necessary amendments to ensure that public order and security are safeguarded.
7. Right to education
Recommendations
151.188, 151.195, 151.196, 151.197, 151.198, 151.224, 151.227 and 151.251
17. In Malaysia, access to formal education is
provided to all Malaysian children including indigenous people, the
underprivileged children and children with disabilities, as stipulated in
Article 12 of the Federal Constitution. The Government of Malaysia will
continue to take more progressive measures towards broadening education
facilities to include those previously denied access, as what has been done
with stateless children.
Recommendations noted by Malaysia
18. 151.1, 151.2, 151.3, 151.4, 151.7, 151.10,
151.11, 151.12, 151.13, 151.14, 151.15, 151.16, 151.17, 151.18, 151.20, 151.21,
151.22, 151.23, 151.25, 151.27, 151.28, 151.30, 151.32, 151.33, 151.36, 151.37,
151.38, 151.39, 151.40, 151.41, 151.42, 151.45, 151.46, 151.48, 151.55. 151.56,
151.57, 151.60, 151.69, 151.77, 151.78, 151.79, 151.80, 151.81, 151.82, 151.83,
151.84, 151.85, 151.101, 151.109, 151.111, 151.112, 151.113, 151.127, 151.129,
151.131, 151.132, 151.133, 151.142, 151.150, 151.151, 151.152, 151.190,
151.199, 151.208, 151.209, 151.212, 151.213, 151.215, 151.217 151.218, 151.219,
151.228, 151.232, 151.236, 151.237, 151.239, 151.240, 151.242, 151.255,
151.258, 151.260, 151.262 and 151.268.
Clarification for the noted
recommendations
1. International human rights instruments
Recommendations 151.1,
151.2, 151.3, 151.4, 151.7, 151.10, 151.11, 151.12, 151.13, 151.14, 151.15,
151.16, 151.17, 151.18, 151.20, 151.21, 151.22, 151.23, 151.25, 151.27, 151.28,
151.30, 151.32, 151.33, 151.36, 151.37, 151.38, 151.39, 151.40, 151.41, 151.42,
151.45, 151.46
19. The Government of Malaysia reaffirms its commitment
to ratify all remaining international human rights instruments. However, there
is a need to achieve precise and full understanding of the relevant rights and
obligations as well as to consider the possibility of reconciling any of the
standards established by the said instruments with those embodied in
long-standing domestic laws, traditions and circumstances as well as
philosophy, as reflected in the Federal Constitution of Malaysia. As a
responsible member of the international community, Malaysia has always taken
into consideration its commitment and ability to fulfil the entailing
obligations before becoming a signatory to any international instruments. With
regard to the reservations made for the instruments that Malaysia has acceded
to, these reservations will still be retained due to their inconsistency with
the Federal Constitution, law and national policies. Nevertheless,
consultations with the relevant Ministries and civil society organisations are
ongoing to pursue the ratification of suitable conventions.
2. Human rights mechanism
Recommendation 151.48
20. The Government has consistently cooperated with
the Special Procedures mandate holders. For example, Malaysia is expected to
receive the visit by the SR on extreme poverty and human rights in August 2019.
Malaysia will continue to work closely with the Office of the High Commissioner
for Human Rights to facilitate future country visits by the Special Procedures
mandate holders.
3. Anti-discrimination law and vulnerable groups
Recommendations 151.55.
151.56, 151.57, 151.69
21. The Government is currently seeking views and
inputs from stakeholders to legislate a National Harmony Bill aimed at
promoting national harmony, unity, reconciliation, integration and
non-discrimination. Vulnerable groups officially recognized by the Government
are women, children, older persons, person with disabilities, the destitute and
homeless.
4. LGBT
Recommendations 151.77,
151.78, 151.79, 151.80, 151.81, 151.82, 151.83, 151.84, 151.85
22. The Government of Malaysia recognises that the
rule of law depends on the moral consensus of the community which cannot be
ignored in a democracy. In Malaysia, cultural or religious beliefs directly
influence the views and outlook as well as the law on questions of sexual
behaviours and the moral ethos of communities. The Government of Malaysia does
not discriminate against the LGBT community and their rights are protected in
accordance with our domestic laws.
5. Death penalty and corporal punishment
Recommendations 151.101,
151.109, 151.111, 151.112, 151.113, 151.228
23. Malaysia wishes to emphasize that corporal
punishment as prescribed under its domestic laws will only be executed when a
person is found guilty and convicted by the Courts. With regard to the death
penalty, once the amendment to the necessary legislation for the abolition of
the death penalty is tabled before and passed by Parliament, the related
recommendations will thereafter be accepted.
6. Freedom of religion
Recommendations
151.127, 151.129, 151.131, 151.132, 151.133
24. Malaysia
recognises the right to freedom of religion, as provided under Article 11 (1)
of the Federal Constitution which states that "every person has the
right to profess and practise his religion and, subject to Clause (4), to propagate
it". Clause (4) allows States the power to legislate for the control
or restriction of the propagation of any religious doctrine among persons
professing Islam. The right to freedom of religion in Malaysia constitutionally
guarantees the rights of any person to profess, practice, and propagate its own
religion. Every person in Malaysia has the right to profess and practice any
religion and subject to Article 11(4) on the propagation of religion.
7. Freedom of opinion and expression, freedom of speech
Recommendation
151.142
25. Malaysia remains committed to upholding the
right to freedom of opinion and expression as enshrined in its Federal
Constitution. The
Government is in the process of amending the relevant laws but a complete
abrogation may not be possible.
8. Transmission of nationality and application of permanent residency
Recommendations
151.150, 151.151, 151.152, 151.208 and 151.262
26. The Government wishes to emphasize that the
registration for citizenship must be done in accordance with the relevant
articles as stipulated in the Federal Constitution.
27. The Government would also like to highlight
that subject to qualifications, foreigners may apply passes such as Resident
Pass from the Immigration Department which will enable them to reside in
Malaysia with their family. Permanent Resident Identity Card (MyPR) is the
basis of eligibility of an individual to apply for Malaysian citizenship.
Therefore, each application is thoroughly scrutinized to ensure national
security and protect the best interest of the citizens.
28. Existing legislation framework for awarding
citizenship in Malaysia is adequate in addressing this issue while laws on
citizenship in Malaysia are based on provisions under Part III of the Federal
Constitution. It is not awarded automatically and is subject to individual
applications. With regard to the issue of equality, both men and women are
given avenues under the Federal Constitution to confer Malaysian citizenship
for their children. To ensure that sovereignty and national security are
protected, all applications are properly reviewed especially with regard to
foreign citizenships as Malaysia does not recognise dual citizenship.
9. Education and health
Recommendations
151.190, 151.199, 151.260, and 151.268
29. Formal education is only for children of
Malaysian citizens while healthcare is accessible to everyone.
30. Although Malaysia is not a State Party to the
1951 Refugee Convention, it has introduced guidelines for the establishment and
registration of Community Learning Centres (CLC) and Alternative Learning
Centres (ALC) as an alternative for undocumented non-citizen children to gain
access to education in Malaysia.
10 Women,
children and gender equality
Recommendations 151.60,
151.209, 151.212, 151.213, 151.215, 151.217, 151.218, 151.219, 151.232,
151.236, 151.237, 151.239, 151.240, 151.242
31. The Government has always placed importance on
the promotion and protection of the rights of the child, including taking the
necessary measures to set up the minimum age of marriage. The Government will
also strengthen its efforts in addressing the main factors of child marriages
such as low income household, school drop outs and lack of knowledge on sexual
reproductive health.
32. Malaysia objects to any practices that are
harmful to female babies and children. Female circumcision is allowed to be
practiced under strict medical procedures performed by accredited medical
professionals.
33. In 2004, the Penal Code was amended vide the
Penal Code (Amendment) Act 2004 to insert a new Section 375A which provides
that:
“Any man who during
the subsistence of a valid marriage causes hurt or fear of death or hurt to his
wife or any other person in order to have sexual intercourse with his wife
shall be punished with imprisonment for a term which may extend to five years”.
Any man who is found guilty of this offence shall be punished with imprisonment
for a term which may extend to five years”.
34. Section 375A mainly intends to further
strengthen legal protection for wives from being hurt by their husbands in
order to have sexual intercourse, although the term “marital rape” is not
explicitly stipulated in the provision.
35. Apart from section 375A, there are other
existing provisions in the Penal Code which can be resorted by wives, depending
on facts of the case. Among others, a husband can always be charged for an
offence of causing injury in which the punishment may go as high as 20 years
imprisonment. Such a punishment is generally similar to punishment for rape,
and significantly higher than certain other countries that make specific
provision for “marital rape”.
11. Indigenous
peoples
Recommendations 151.255
and 151.258
36. The Government takes note that UNDRIP covers
all aspects of the rights of indigenous peoples including economic, social,
political, cultural and land. However, as each State in the Federation has its
own jurisdiction over their natural resources, the Government of Malaysia will
continue to look for the best manner in ensuring the rights of the indigenous
peoples are protected.
37. The Government of Malaysia will continue to
ensure that the indigenous people are represented at the highest level,
including having their voices heard as Senators and Members of Parliament.
***
Above
is Malaysia's response dated 18/2/2019 in response to the
recommendations made by UN member countries on a wide range of issues.
Malaysia accepted many. It explains also why it accepted some partially,
and some it merely 'noted' - The explanations ought to be read as it
concerns the death penalty, corporal punishment, migrant workers,
indigenous people, human rights defenders, education, etc (I have
highlighted the topics in red)..
Now,
the document refers to recommendations by number, and to see what
exactly these recommendation says, you may want to follow the link and
see all documents concerning the UPR on Malaysia in detail at - Universal Periodic Review - Malaysia
It is good to know what Malaysia accepted, partially accepted and/or noted..
