MACSA Intervention Notes on Malaysia 3rd UPR before the UN Human Rights Council

Statements

This intervention serves to highlight particular concerns of our alliance, namely the Malaysian Alliance of Civil Society Organisations in the UPR Process or MACSA, towards the recommendations recently received by Malaysia from states sitting in the UN Human Rights Council (#UNHRC) during its 3rd Universal Periodic Review (#UPR) in November 2018 as well as Malaysia’s position on the recommendations received and also serves as an update on Malaysia’s human rights situation since then.

General observation

We note that Malaysia has received a total number of 268 recommendations by various nations during this 3rd UPR. Despite our best efforts at informing as many states as possible as to the human rights issues we believe to be pertinent with respect to Malaysia via our pre-3rd UPR Human Rights Report, disappointingly, these states have largely chosen to ignore our concerns within the area of religious freedom, women and the LGBT community. The only area in which concerns, and recommendations highlighted by the said report received attention from states would seem to be when it comes to migrants and refugees.

We hope that states will be fairer and more inclusive in their highlight of human rights concerns and making recommendations with respect to Malaysia in the future and urge Malaysia to nonetheless accept and implement the recommendations contained in our pre-3rd UPR Human Rights Report.

Meanwhile we shall highlight the recommendations of states towards Malaysia in its 3rd UPR that are of particular concern to MACSA and state MACSA’s stand thereon, in the hope the same will be considered by Malaysia.

Death Penalty

Our position on the death penalty has been consistent since the publication of CENTHRA’s first Human Rights Report in 2016. We believe that the death penalty should be maintained but the standard of proof required for conviction for capital offences be enhanced in accordance with the Islamic standard of beyond a shadow of a doubt. This we believe to be the right balance between the right of society to be protected from particularly heinous, violent crimes such as murder and rape, and the right of the individual to life. This also accords with Article 5(1) of Malaysia’s Constitution stipulating that everyone has the right to life save in accordance with law and Article 3(1) thereof enshrining Islam as the religion of Malaysia as a federation. We also believe that for non-violent crimes such as drug trafficking, the death penalty should not be made mandatory but rather discretionary, and should not rely on presumptions enshrined in statute.

Recommendations 37 and 91 to 108 all either request Malaysia accede to international conventions outlawing the death penalty or urge moratoriums thereon as well as its outright abolition and Malaysia has largely accepted these recommendations. Malaysia also already has a moratorium in place and intends to abolish the death penalty very soon. We oppose this outright abolition and have in a recent statement concerning the death of one Muhammad Adib by vigilantes in the line of duty urged the moratorium be lifted so that justice may properly be served.

Malaysia is urged to take into the right to life of victims of crimes and not merely those of criminals, and properly balance the two by accepting and implementing our proposal in this regard.

Torture

MACSA has consistently opposed torture in all its forms and has worked closely with the Human Rights Commission of Malaysia (SUHAKAM) on encouraging Malaysia to accede to the Convention against Torture (CAT). It is in light of this that we welcome the various recommendations made by states in the UNHRC that Malaysia accede to CAT and we believe that Malaysia should heed the call to accede to CAT as soon as practicable. We also support the call to incorporate the definition of torture in CAT within Malaysian criminal law made by Paraguay in recommendation 113. To our surprise, Malaysia’s response to most of the recommendations made in respect of ratification of CAT and the elimination of torture is mostly noted rather than accepted. We believe this should change, although the definition of torture must be well defined, with the definition contained in Article 1 of CAT to be authoritative.

HumanTraffickingMigrants and Refugees

MACSA supports all and any efforts to safeguard migrants and refugees in Malaysia, including the ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the enactment of laws to protect and promote the rights of migrants and provide legal protections against their exploitation and discrimination. MACSA also believes that migrants and refugees should be accorded the right to work and allowed to open businesses so as to contribute to the Malaysian economy and lessen their burden on healthcare and welfare services. We are pleased to learn that Malaysia has broadly accepted almost all recommendations made by states in this regard.

While Malaysia is heading in the right direction with respect to treatment of migrants and refugees domestically, Malaysia must continue to speak out against their abuse by regimes such as Myanmar in the case of Rohingya, Palestinians in the case of Israel and the ethnic Uyghurs in the case of the People’s Republic of China.

PreventiveLaws and FreeSpeech

As in past UPRs, a number of states have recommended Malaysia review and abolish preventive laws and those affecting free speech such as the Sedition Act 1948, the Prevention of Crime Act 1959 (POCA), the Prevention of Terrorism Act 2015 (POTA), the Peaceful Assembly Act 2012 (PAA), the Printing Presses and Publications Act 1984 (PPPA) and the Communication and Multimedia Act 1998 (CMA).

MACSA is steadfast that while we can accept reviews to ensure laws such as the Sedition Act is not abused (such as Georgia’s recommendation 143) we cannot accept wholesale repeal (such as advocated by Australia, the USA and the Czech Republic in recommendations 96, 137 and 142 respectively). The Sedition Act plays a fundamental role in ensuring the social contract as enshrined by the Federal Constitution of Malaysia is respected and upheld by Malaysian society.

As for the call to repeal POTA, POCA, PAA, PPPA and CMA, these laws should undergo comprehensive a comprehensive study to ensure they strike the right balance between the need to safeguard national security and individual liberties. National security should also be seen as a human right as well.

Women

Recommendations related to women include calls for Malaysia to withdraw its reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (Rec 38. Turkey, Rec 39. Norway), to incorporate the definition of discrimination against women in legislation (59. Chile, 210. Mexico), and to enact Gender Equality Bill (Rec 206. Pakistan, Rec 211. Mexico). There have also been calls for Malaysia to ratify optional protocols to CEDAW (Rec 36. Mexico). We duly noted that Malaysia has taken note of all the recommendations except for the calls on Gender Equality Act (GEA) which Malaysia has accepted and is currently in the midst of formulating such a law.

These calls must be studied in greater details as reservations in place, currently safeguard the administration of Syariah law for Muslims. Similarly, the enactment of GEA and for legislation to be effective in combating discrimination, the term gender must be specific and scientific on biological basis rather than the arbitrary social construct that is subject to debatable interpretations that may potentially interfere with its implementation,

MACSA reiterates that while gender equality is a global agenda, Malaysia’s framework is guided by local sensibilities and sensitivities in the Federal Constitution. That said, MACSA broadly supports recommendations relating to equal citizenship rights for women (Rec 150. Belgium, Rec 151. Haiti, Rec 152. Kenya), greater protection against women’s exploitation via human trafficking (Rec 116. Senegal, Rec 120 Algeria, Rec 123. Djibouti) and improving their access to education (Rec 153. Russia).

We note that our push for legislation against sexual harassment received no attention from the states although Singapore did call for protection of women from domestic and sexual violence (Rec 214). We regretted that our call for greater respect for the religious freedom of women , such as affirming their right to don the hijab has been ignored by the states.

Children

MACSA broadly supports calls for the improvement of children’s welfare and greater protection against the exploitation made by states. However we note that there have been a number of recommendations against child marriage (Rec 212. Portugal, Rec 213. South Korea, Rec 218. Honduras). There have also been recommendations for Malaysia to set the minimum age of marriage at 18 years with no exceptions, even based on differences in religion (Rec 232 to 243). We note that Malaysia has accepted those recommendations speaking of intensifying efforts to combat child marriage, while merely taking note of those requesting the review of all laws to ensure a minimum age for marrying.

While MACSA is against any sexual exploitation of children, we are keen to emphasize that not all underage marriages equate to exploitations. The states of Malaysia have their own jurisdictions over marriage for persons professing Islam as the religion and there is broadly a safeguard against abuse, by the requirement to obtain consent of Syariah court judges. We laud the proactive measure by Syariah court to tighten the standard operating procedure that it has been reported underage Muslims marriages have been decreasing in recent years.

We also warn that there have been consistent effort to stereotype child marriage as a problem confined to Islam by certain Islamophobic elements in Malaysian society when statistics indicate that there are more non-Muslim child marriages when compared to Muslims. Clearly, the Human Rights Council resolution of 16/18, adopted by Malaysia in 2011 stated that state should combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence, and violence against persons based on religion or belief.

LGBT

In the past, a number of Western nations have advocated Malaysia to accept the consensual same sex activity and to repeal the law that criminalizes LGBT via their recommendations at previous UPRs and the 3rd UPR is no exception. In the 3rd UPR, the recommendations range from having legal frameworks recognising LGBT persons (Rec 77. Argentina, Rec 78. Austria) to decriminalising same sex relations (Rec 79. Canada, Rec 80. Chile). Malaysia has rightly again refused to accept any of those recommendations.

MACSA opposes discrimination and violence against LGBT persons and has always advocated a faith based approach, integrated with evidence based medicine in dealing with LGBT issues. Most major religions ban same sex activity. The rights of LGBT persons who wish to renounce the lifestyle must be guaranteed. We note with regret that our call for religious rights of LGBT persons has been ignored by states. The fact that there is increased in HIV prevalence among transgender (from 5.6% in 2014 to 10.7% in 2017) and almost tripled in men who have sex with men (from 8.9% in 2014 to 21.6% in 2017) in Malaysia, warrant a holistic approach in curbing the HIV infection through religious emphasis of prevention, and this can be achieved if the religious rights of LGBT persons is ensured.

[Delivered in the Ministry of Foreign Affairs at Putrajaya on 15 January 2019 by Azril Mohd Amin and Prof Dr Rafidah Hanim Mokhtar, co-chairs of MACSA]

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