Media Statement – 10/12/2022
SUHAKAM Must Be Independent, with the Right To Inspect Police Lock-Ups Without Prior Notice, to investigate and prosecute those who violate rights
Politicians Hasnal Rezua Merican and Nazira Abdul Rahman must resign to protect the perception of the independence of the Malaysian Human Rights Commission
SUHAKAM (Human Rights Commission of Malaysia) now has the power to ‘(d) to visit places of detention in accordance with procedures as prescribed by the laws relating to the places of detention and to make necessary recommendations’ according to Section 4(2)(d) of Human Rights Commission of Malaysia Act 1999. SUHAKAM chairman Rahmat Mohamad was reported asking ‘…that Suhakam be given the power to conduct unannounced visits to detention centers and prisons…’(FMT, 10/12/2022).
Prior Notice Allows for Removal and Tampering of Evidence
Rightfully, SUHAKAM should have the right to visit without prior notice any place of detention like police lock-ups, Immigration Detention Centers and prisons. There should be no requirement to comply with procedures relating to detention places sudden spot checks.
If a bad employer who have been illegally holding on to passports of their migrant workers, gets prior information of the visit of the Ministry of Human Resources or police to verify these allegations, then the employer may ‘hide’ their crimes, maybe by returning passports to workers and warning or threatening workers to deny such allegations failing which risk retaliation. Hence, when the law enforcers do visit the site to determine whether the allegations are true or otherwise, they will find no evidence.
Likewise, if SUHAKAM needs to inform first that they will be visiting a police station and the lock-up, it is most likely that when SUHAKAM do visit the site, they will not find it in the usual state. Hence, the need to amend the law to make it clear that SUHAKAM Commissioners and its officers can do sudden spot checks, without any requirement of any prior notice to the Minister, the Head of the relevant law enforcement department or others.
MADPET (Malaysians Against Death Penalty and Torture) agrees that SUHAKAM must be given right to do spot checks or visits without prior notification not just to places of detention, but also facilities of law enforcement like police stations and/or any other private or public facilities where SUHAKAM believes there may be a human rights violation.
Right to Investigate and Prosecute
SUHAKAM must also be given the right to investigate and prosecute wrongdoers, and not simply be limited to making necessary recommendations. Even after SUHAKAM public inquiries concluded that law enforcers like the police or others have been responsible for crimes, we have not seen any needed follow up investigation and/or prosecution by the police or even the Public Prosecutor, and as such it is important to bestow on SUHAKAM the power to investigate and prosecute crimes, without the requirement of any consent of the Public Prosecutor or the government.
Prime Minister power to decide on SUHAKAM Commissioners must be removed
A major problem now is that the law says that ‘…the members of the Commission shall be appointed by the Yang di-Pertuan Agong on the recommendation of the Prime Minister…’, and there is a need to remove Prime Minister’s power in the appointment of the Chairman and SUHAKAM Commissioners. It must be noted that often the government and/or public officers are the alleged violators of human rights, and, as such, it is best that the appointment of Commissioners be done by an independent body – not the Prime Minister being head of government. Maybe the Committee that the Prime Minister now need to consult before making recommendations to the King ought to directly make the recommendations to the King with regard to appointment of Commissioners, and this Committee composition itself also ought not be determined by the Prime Minister.
Active Politicians Should Not Be Human Rights Commissioners
SUHAKAM must be independent of the government, and thus the Commissioners also should not include persons who are active in parties that are part of the government or in the Opposition.
In the recent appointment of Commissioners that happened in 1/7/2022 vide the announcement by the then Prime Minister (who was then also a UMNO Vice President), several quarters have raised concern about the appointment of the Selayang Umno chief Datuk Hasnal Rezua Merican Habib Merican and the Kulim Umno women’s division chief Nazira Abdul Rahman as SUHAKAM Commissioners.
UMNO is the dominant party in the Barisan National, which was part of the coalition government at the time of the appointment, and again now is a member of the current coalition government, whereby the President of UMNO is now the Deputy Prime Minister.
Although Section 5 that does not specifically say that active politicians cannot be appointed as SUHAKAM Commissioners, section 11A(4) on the Committee to be consulted with regard to appointment, states clearly that ‘The following persons shall not be appointed as members of the committee … (a) any person who is actively involved in politics and registered with any political party…’.
Thus, to ensure independence of the SUHAKAM Commissioners, it would be best that no ‘…person is actively involved in politics and registered with any political party…’ be appointed Commissioner, at least not those that have held or is holding office in political parties.
MADPET is of the view that political party members can be appointed as SUHAKAM Commissioners, but not those that have held office in political parties in the past 3 years, or is currently holding office.
Commissioners Hasnal Rezua Merican and Nazira Abdul Rahman must resign
Is Hasnal Rezua Merican and Nazira Abdul Rahman, 2 of the 8 currently appointed Commissioners, still holding office or is active in UMNO? If they are, it seriously jeopardizes the independence of SUHAKAM.
MADPET calls on Hasnal Rezua Merican and Nazira Abdul Rahman to immediately resign for the sake of human rights and to ensure that the perception that SUHAKAM is truly an independent human rights commission, in compliance with the 1993 Paris Principles.
MADPET calls for a truly independent and active Malaysian Human Rights Commission, that will uphold the cause of human rights and justice without fear or favour, and will bravely act and speak out even when the violator of human rights is the government, Minister or public officers.
Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)
Political will needed to empower Suhakam on human rights issues
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PETALING JAYA: Political will is needed if the government is to equip human rights commission Suhakam with more power to promote and protect human rights in the country.
Currently, Suhakam can only provide recommendations to the government about human rights issues.
“Perhaps it’s about time the government gave more power to Suhakam. There must be trust on its part for this to materialise,” Suhakam chairman Rahmat Mohamad told FMT in a recent interview in conjunction with the United Nation’s Human Rights Day today.
“Will the government be comfortable (with giving more power to Suhakam)? If the government is serious about maintaining human rights, then some power must be given. (But) is the government ready to do so?”
Rahmat was also hopeful that Suhakam be given the power to conduct unannounced visits to detention centres and prisons. He also wanted to see Suhakam’s recommendations implemented, and justifications to be provided if the proposals are rejected.
Separately, the former law professor suggested that the government have a legal framework to identify various categories of undocumented people in order to support any effort by the government in dealing with them, including providing assistance.
“Not all of them are undocumented immigrants. For instance, there are economic migrants, asylum seekers, and refugees,” he said.
Rahmat also called for the new government to table and debate the annual Suhakam report in Parliament.
“The report needs to be laid out in the Dewan Rakyat so that all 222 MPs are aware of the issue of human rights. It is only when it is debated that they would know what action to take.
“Issues such as statelessness, citizenship, and cramped prisons need to be debated. Otherwise, the report will only belong to the library,” he said.
Rahmat added that it’s the responsibility of the government to provide education and training to everyone, including the country’s large Rohingya community.
“They are stuck here. If you train them and give them the right to work in a certain sector such as plantation, I think a third country will consider taking them,” he said.
However, he emphasised that the government must assure the public that such migrants are not here to steal their jobs.
The United Nations High Commissioner for Refugees (UNHCR) says Malaysia hosts some 181,000 refugees and asylum-seekers.
Around 85% are from Myanmar, including some 103,000 Rohingyas. The
remaining are from 50 other countries, including Pakistan, Yemen, Syria,
and Somalia. - FMT, 10/12/2022
New Suhakam commissioners have a lot of catching up to do ― Hafiz Hassan
AUGUST 11 ― Newly minted Suhakam commissioner Ragunath Kesavan said on Wednesday that there was no provision in the Human Rights Commission of Malaysia (Suhakam) Act 1999 (Act 597) that prohibited individuals with political ties from becoming a Suhakam commissioner.
The former Bar Council president was responding to questions by reporters on recent criticisms, including from several rights groups, who raised concerns about “controversial appointments” that could compromise Suhakam’s work.
Among others who questioned the appointments was rights group Suara Rakyat Malaysia (Suaram) who claimed that the appointment of Selayang Umno chief Datuk Hasnal Rezua Merican Habib Merican and Kulim Umno women’s division chief Nazira Abdul Rahman would severely compromise the neutrality of the human rights commission.
It’s true.
By section 5(3) of Act 597, a Suhakam commissioner “shall be appointed from amongst men and women of various religious, political and racial backgrounds who have knowledge of, or practical experience in, human rights matters.” (Emphasis added)
Ragunath should know better. But as men and women “who have knowledge of, or practical experience in, human rights matter”, he and his fellow commissioners should know that Suhakam is one of more than 110 National Human Rights Institutions (NHRIs) which are members of the Global Alliance of National Human Rights Institutions (GANHRI).
GANHRI brings together and supports national human rights institutions to promote and protect human rights. It represents more than their members and staff across all regions, GANHRI is one of the largest human rights networks worldwide.
GANHRI is recognised, and is a trusted partner, of the United Nations (UN). It has established strong relationships with the UN Human Rights Office and other UN agencies, as well as with other international and regional organisations, NGOs, civil society and academia.
As members of GANHRI, NHRIs like Suhakam are accredited by GANHRI. Accreditation takes place under the rules of procedure of GANHRI’s Sub-Committee on Accreditation (SCA).
The accreditation is guided by the principles of transparency, rigour and independence. There are currently two levels of accreditation: Status “A” and Status “B.”
Status “A” NHRIs are in full compliance with the Paris Principles – a set of international standards which frame and guide the work of NHRIs. Drafted at an international NHRIs workshop in Paris in 1991, they were adopted by the UN General Assembly in 1993.
Status “B” NHRIs are only in partial compliance with the Principles.
Suhakam has been accredited with “A” status since November 2009 after being recommended a “B” status in April 2008.
NHRIs are reviewed on a periodic basis every five years, with reviews focused on recommendations. Last year, the SCA convened virtually from June 14 to 24 where it considered applications for re-accreditation from 8 NHRIs, including Malaysia.
In its report, the SCA has recommended that Suhakam be re-accredited with A status. So well done Suhakam! The SCA duly commends the efforts of Suhakam to promote and protect human rights. The accreditation committee encourages Suhakam to continue these efforts.
The SCA, however, highlights that NHRIs that have been accredited A status, like Suhakam, should take reasonable steps to enhance their effectiveness and independence, in line with the Paris Principles and the notes and recommendations made by the SCA during the review.
The SCA notes that section 5 of Act 597 (members of Suhakam and term of office) still leaves open the potential for political interference.
The SCA is of the view that the process currently enshrined in Act 597 is not sufficiently broad and transparent. In particular, it does not:
― require the advertisement of vacancies;
― establish clear and uniform criteria upon which the Selection Committee assesses the merit of applicants; and
― promote broad consultation and/or participation in the application, screening, selection and appointment process.
According to the SCA, it is “critically important to ensure the formalization of a clear, transparent and participatory selection and appointment process for an NHRI’s decision-making body in relevant legislation, regulations or binding administrative guidelines, as appropriate. A process that promotes merit-based selection and ensures pluralism is necessary to ensure the independence of, and public confidence in, the senior leadership of an NHRI.”
As such, the SCA encourages Suhakam to advocate for the formalisation and application of a process which are in accordance with the Paris Principles that includes requirements to:
a) Publicise vacancies broadly;
b) Maximise the number of potential candidates from a wide range of societal groups and educational qualifications;
c) Promote broad consultation and / or participation in the application, screening, selection and appointment process;
d) Assess applicants on the basis of pre-determined, objective and publicly-available criteria; and
e) Select members to serve in their individual capacity rather than on behalf of the organisation they represent.
That said, the SCA duly also acknowledges the amendments prepared by Suhakam to its enabling law (Act 597) to address the above concerns and encourages the Commission to continue to advocate for the adoption of those amendments.
There are five other recommendations to Suhakam regarding full-time commissioners, adequate funding, cooperation with other human rights bodies, annual and special reports, and dismissal of commissioners. The report can be read here.
The new line-up of Suhakam commissioners has appealed to the public to allow them time to do their jobs. But time is what we want most, but what we use worst. (A quote attributed to William Penn, an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania.)
Since the commissioners are not full-time members as the SCA report noted, two months is a long time gone that can never be gotten back.
There is a lot of catching up to do for the new
commissioners to continue and follow up with the commendable work of
their predecessors. - Malay Mail, 11/8/2022
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