Dear Prime Minister Najib,
Human Rights Watch is writing in regard to Malaysia's candidacy for election to the United Nations Human Rights Council. In support of its candidature for the 2010-2013 term, the Malaysian government circulated a memorandum dated March 9, 2010, outlining its human rights record and its pledges and voluntary commitments. UN General Assembly resolution A/RES/60/251 states that members of the Human Rights Council shall "uphold the highest standards in the promotion and protection of human rights" and "fully cooperate with the Council." We believe that it is essential that countries which are members of the Human Rights Council adhere to these criteria. Therefore, Human Rights Watch asks for your commitment to make the following changes in Malaysia's laws, policies, and practices that affect the protection and promotion of human rights in the country.
Rescind reservations to human rights treaties
The Malaysian government has voluntarily committed to "strengthening capacities for implementation and enforcement for human rights conventions which Malaysia is party to, alongside reconsidering of instruments which it has yet to accede to."
Human Rights Watch is concerned by the extensive reservations Malaysia adopted when ratifying the Convention on the Elimination of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). The reservations to CEDAW, articles 5(a), 7(b), 9(2), 16(1)(a), (c), (f), (g), and 16(2), undermine the government's commitment to women's rights and contribute to the failure to protect the rights of women to equal participation in affairs of state, and in marital and family relations. The CRC reservations, articles 1, 2, 7, 13, 14, 15, 28(1)(a) and 37, minimize protections offered to children in respect to discrimination, torture, arbitrary detention, and enjoyment of the core rights of free expression, thought, conscience, and religion, association and peaceful assembly, and due process. We urge Malaysia to promptly review and rescind all of these reservations. In addition, we urge that Malaysia ratify the two Optional Protocols to the CRC, which prohibit the sale of children and child prostitution and pornography, and the use of children in armed conflict.
Ratify additional human rights treaties
Human Rights Watch has long expressed concern that Malaysia, unlike most of the world's states, is not party to all of the core international human rights treaties. We urge Malaysia to ratify without delay the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Elimination of All Forms of Racial Discrimination, and to bring domestic law into conformity with these conventions.
While Human Rights Watch commends Malaysia for ratifying a number of the core Conventions of the International Labor Organization (ILO), we urge quick ratification of ILO Convention No. 87 (Freedom of Association) and Convention No. 100 (Discrimination in Employment and Occupation). We also urge that Malaysia take immediate steps to reverse its denunciation of Convention No. 105 (Abolition of Forced Labor), one of only two current denunciations of a core convention by an ILO member state. We further recommend Malaysia support a binding convention on domestic work at the upcoming International Labor Conference in June 2010 in Geneva.
Expand cooperation with UN Special Procedures of the Human Rights Council
Malaysia's voluntary commitments and pledges include "deepening and widening our cooperation with and support for the work of various UN actors and mechanisms involved in the promotion and protection of human rights such as the ... Special Procedures of the Human Rights Council," which includes special rapporteurs, working groups, and independent experts. Human Rights Watch welcomes the recent decision of the Malaysian government to allow the Working Group on Arbitrary Detention to visit in June 2010, and urges that planning for the visit be done in a participatory and transparent manner, involving all key stakeholders including representatives of Malaysian civil society long active on issues related to arbitrary detention.
However, we believe that the Malaysian government can and should do more. At present, there are eight outstanding requests from special rapporteurs whose mandates cover critical areas for human rights protection in Malaysia. Human Rights Watch urges that your government immediately extend invitations for visits to those on the "waiting list" and arrange to complete all eight visits by 2013. These would include visits by the special rapporteurs on (1) human rights defenders (requested 2002); (2) indigenous people (2005); (3) freedom of religion (2006); (4) migrants (2006); (5) human rights and counterterrorism (2005); (6) racism (2008) and (7) independence of judges and lawyers (2009) and (8) the independent expert on minority issues (2007, 2009).
In addition, as a matter of principle Malaysia should issue a standing invitation to visit to all UN special procedures mandate holders, including special rapporteurs, independent experts, and working groups.
Implement recommendations from the Malaysia Universal Periodic Review
The Malaysian government includes among its voluntary commitments and pledges that it will engage "continuously with all our partners and stakeholders to assess and monitor the implementation of recommendations" from the Universal Periodic Review (UPR) process. However, Human Rights Watch is concerned that contrary to its pledge, Malaysia has failed to adequately consider numerous recommendations made by Malaysian nongovernmental organizations and by other UN member states. We note that many of your government's objections were directed against civil and political rights protections. We urge you to reconsider Malaysia's stance, especially since the voluntary commitments and pledges acknowledge that "the Government is increasingly sensitive of the need to balance the traditional emphasis on ESC [economic, social and cultural] rights with civil and political rights."
Human Rights Watch supports this commitment, and in addition to the above recommendations, calls on the Malaysian government to take the following actions as soon as possible, and in all cases before its next UPR review in 2013.
Repeal laws providing for preventive detention
Human Rights Watch notes that when you became Malaysia's prime minister in April 2009, you pledged your "intention to uphold civil liberties" and expressed your "regard for the fundamental rights of the people of Malaysia." We call on you to turn these pledges into concrete action by ordering law enforcement officials to immediately cease use of all preventive detention laws, and by starting a time-bound process to repeal those laws. The Malaysian penal code and criminal justice system are fully capable of addressing situations of internal security, and should be allowed to do so without resorting to preventive detention, which results in long-term arbitrary detention without the right to a fair trial.
Human Rights Watch notes your government stepped back from tabling the Internal Security Act 1960 (ISA) for amendment by parliament in March 2010. We are concerned that amending the law is not an adequate remedy because the law's core premise runs contrary to international human rights standards. Rather, we urge your government to publicly push for immediate repeal of the ISA as recommended in 2003 by Suhakam, the national Human Rights Commission of Malaysia. The government should also repeal provisions allowing for preventive detention under the Emergency (Public Order and Prevention of Crime) Ordinance 1969, the Dangerous Drugs (Special Preventive Measures) Act 1985, and the Restricted Residency Act 1933. Those who are being held under these laws should immediately be charged with a cognizable offense in a court of law or released.
Amend or repeal laws restricting rights to freedom of expression, assembly, and association
In line with your statement as prime minster that "We [Malaysia] need a media ... that is empowered to responsibly report what they see, without fear of consequence," we urge immediate repeal of the draconian Printing Presses and Publications Act 1984, which requires annual licensing of publications and which has been used by the authorities to effectively penalize responsible media outlets raising sensitive issues and covering controversial stories not supported by the government.
We further urge your government to amend the Communication and Multimedia Act 1998, which places restrictions on the media by prohibiting "content which is indecent, obscene, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person." Violations carry fines up to RM50,000 (US$15,620) and up to a year in prison. The law's vague and overbroad wording allows government officials wide ranging authority amounting to effective censorship of material running counter to government political views and objectives.
The government should also amend the Universities and University Colleges Act 1971 to provide for freedom of expression for academics and students on campus, recognizing that free exchange of opinions is a core element of academic discourse and learning. In line with the recommendations of the Special Rapporteur on the Right to Education, the government should amend the Act "to guarantee recognition of the right of teachers and pupils to freedom of expression, freedom of assembly and their right to participate in political activity."
The government should also amend the Sedition Act 1948, and narrow the overbroad definitions of "sedition" and "seditious tendency," which authorities too frequently use to censor expression or to jail peaceful political opponents and critics.
In line with Suhakam's recommendation, the Police Act 1960 should be amended to allow for peaceful assembly. License requirements for any gathering of three or more persons have long been used by law enforcement authorities to bar rallies professing messages the government would rather not be heard. Violent repression of peaceful rallies conducted without a permit has too often been the norm. Amendments should include revoking the unlimited power of a police district officer to refuse a license or to arbitrarily determine the conditions under which assemblies, meetings, or processions are licensed. Instead, amendments should provide for reasonable and negotiated conditions for assembly, and an appeal process that eliminates political grounds for withholding permission.
Human Rights Watch is seriously concerned with the Malaysian government's continued failure to amend labor law and regulation in order to ensure full freedom of association for workers. We note the decision of the ILO Committee on Freedom of Association (CFA) in case No. 2301, calling on the government to amend the Trade Unions Act 1959 and the Industrial Relations Act 1967 so as to bring those acts into full compliance with the right to freedom of association. We urge the government to act on the ILO CFA's recommendations in the case cited and to make the necessary legislative amendments to the relevant acts.
Provide for refugee rights and establish status determination procedures
The government should immediately ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Human Rights Watch recognizes the government's enhanced cooperation with agencies such as the United Nations High Commissioner for Refugees, but notes that such cooperation and contemplated plans to ease conditions for refugees and asylum seekers is not backed by enabling legislation.
Respect rights of migrant workers and improve conditions in immigration detention centers
Human Rights Watch urges Malaysia, as a major labor receiving country for migrant workers from Southeast and South Asia, to promptly ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Such workers, who comprise close to 30 percent of the Malaysian work force and contribute significantly to the economic development of Malaysia, are entitled to the effective legal protection that ratification and concomitant change in domestic legislation will provide.
The government should significantly reform its foreign worker recruitment practices. Specifically, the government should move the entire responsibility for registration and regulation of migrant workers to the Ministry of Human Resources. We call on your government to immediately end "out-sourcing" arrangements operating under the authority of the Ministry of Home Affairs that unscrupulous agents and middlemen consistently use to cheat workers and violate their human and labor rights.
Human Rights Watch urges your government to amend all relevant labor laws and regulations to ensure that domestic work is fully covered by those laws, and to conclude bilateral memorandums of understanding with countries sending migrant domestic workers so as to ensure effective labor rights protection, fair wages, safe working conditions, and guaranteed protection of basic human rights-such as freedom of association, movement, and expression.
While we recognize Malaysia's responsibility to secure its borders through immigration laws, we urge your government to de-criminalize illegal entry. The practice, rather than discouraging irregular migration, only succeeds in prolonging detention and increasing crowding in immigration detention centers (IDCs). The government's systematic use of corporal punishment against undocumented male migrants to penalize illegal entry should also be discontinued. Use of such punishment contravenes international human rights prohibitions against torture or cruel, inhuman, or degrading treatment or punishment.
Human Rights Watch also calls on your government to immediately take action to improve the living conditions for those held in IDCs. Reports from former detainees, supplemented by accounts from others acquainted with the centers, consistently cite pressing problems such as serious overcrowding, filthy conditions, bug and rodent infestation, inadequate sleeping arrangements, chronic food shortages, insufficient and unhygienic water for bathing and drinking, and woefully inadequate medical attention. Deaths from leptospirosis, a bacterial infection associated with water contaminated by animal urine, have surfaced in at least two IDCs.
Human Rights Watch believes that Malaysia's operation of its IDCs contravenes the UN Standard Minimum Rules for the Treatment of Prisoners and the UN Body of Principles for the Protection of all Persons under any Form of Detention, and accordingly, are inconsistent with Malaysia's voluntary commitments and pledges to Human Rights Council. We urge your government to commit the necessary resources to improve conditions in the IDCs to meet international standards.
Suhakam: The Human Rights Commission of Malaysia
Finally, Human Rights Watch notes your government's commitments regarding Suhakam. Human Rights Watch supports your pledge of "increasing support for the roles and functioning of Suhakam" including its ability to undertake "public inquiries into allegations of human rights infringements free from government interference." As part of that pledge, Human Rights Watch urges that your government ensure that selection of Suhakam commissioners is conducted in a participatory and transparent manner that involves civil society organizations and makes use of an open nomination process. We also call on parliament to set aside specific times on its schedule for open debate on each Suhakam report it receives.
Human Rights Watch commends Malaysia for its decision to stand for election to the UN Human Rights Council. We wish to request a meeting with you or your representatives to discuss how Malaysia may best implement its voluntary commitments and pledges to the Council and to fellow UN member states.
Sincerely,
Brad Adams
Director, Asia Division
