As the country faces relentless economic development, NGOs and Suhakam have a pivotal role to play in ensuring that the rights of the people are not neglected and the negative impact of development is minimised, writes Jerald Joseph.
Suhakam has had to contend with a more vibrant society that is now more conscious and aware of its human rights; and this was more apparent after the general elections of 2008. The much talked about unprecedented elections saw a massive swing of votes to the Pakatan Rakyat parties, which captured five states in Malaysia and broke the ruling coalition’s two-thirds parliamentary majority. This change presented a fresh beginning for all Malaysians.
It was also a time during which Suhakam too stepped up its feel for the pulse of the Malaysian society; albeit one that was becoming much more aware and increasingly involved in matters of national, societal and self interest. The courage and demand for change signalled by the said election has been sustained since. It is in this context that the demand for more human rights has also reverberated throughout the nation. Economic, social and cultural rights take centre stage in many of the debates and discussions now. “Bread and butter” issues have always been the cornerstone for the Malaysian government to negotiate and make promises with the people about their political choices during election. While this remains the main priority for the common “rakyat”, the level of maturity on understanding of issues beyond bread and butter have increased.
Despite these changes, the government has time and time again used the “lure” and “promise” of development for the people as an inducement to solicit votes. This is the most common and flagrant violation of human rights that must be condemned categorically. Interestingly, some sections of the “rakyat” have wisened up to this trick and have not been buoyed into voting from the heart; they are now voting based on their conscience.
The use of economics and social needs as an election campaigning point has not been condemned by Suhakam in a strong and systematic way, although it has issued a statement saying “elections in Malaysia are generally free. However, elections have not been entirely fair as there had been instances of misuse of Government facilities and funds”.
Suhakam as the watchdog agency for human rights abuse could have been stronger in its condemnation and prepared a thorough report of the impact of using development promises as corrupt practice in elections. This practice continues till this day.
Suhakam has grown in strength in term of organising conferences, roundtable discussions, receiving complaints and conducting public inquiries. They need to be appreciated for their commitment and dedication; and for the dedicated work done by them collectively as Commissioners as well as a dedicated staff team.
This discussion will focus on the Economic, Social and Cultural Rights (ESCR), which has been the focus and responsibility of the Economic, Social, Cultural Working Group (Ecosoc) before. These were merged in 2009 and placed under the Economic, Social, Cultural & Civil and Political Rights Working Group (Ecosoc-CPR). While this can be seen as an efficient rationalisation of the committees, it only means that the committee would not be able to focus its work more effectively on either civil and political issues or ESCR concerns. The demands of all the various aspects of human rights needs focused energy and concentration, and therefore the merger may not have been the best way forward for Malaysia.
It is indeed true that, in the human rights discourse, the inter-dependence and inter-connectedness of these rights are emphasised, but in reality, for the handling of the various issues it would have been more effective to have a focused and dedicated programme and energy on ESCR. This was more possible under the older set-up when there were more Commissioners appointed.
Nevertheless, this evaluation would focus on the first objectives of the Working Group on Ecosoc-CPR. The report will comment on how it works through the functions it set out to do; and they are:
- To highlight the plight of vulnerable groups vis-à-vis their economic and social rights, such as the right to adequate housing, health care and education – vulnerable groups in this instance include the urban and rural poor, single mothers, the elderly and people suffering from mental illness; and
- To enhance and promote civil and political rights, with particular emphasis on freedom of assembly and freedom of expression, and abolition of detention without trial, preventive laws and life sentence.
On the first objective of this working group, the focus of ESCR for Suhakam is to review the impact of housing, health and education rights on vulnerable communities in Malaysia. This committee has the intent to manage economic and social aspects of ESCR. It is understandable that Cultural Rights is a very specific field and needs more specialised efforts; and more so in the pluralistic Malaysian society where race and religion have been used and abused for decades for political gains.
The handling of cultural matters is of utmost importance as the present political landscape in Malaysia allows for systematic abuse and discrimination based on race and religion to continue, and sometimes with impunity. Suhakam must urgently address this and use the human rights framework to address this challenging issue.
Race-related matters have always been labelled a ‘sensitive’ issue by the government as it is linked with the constitutional affirmative action policies of some ethnic groups. But, this political coinage of “sensitive matters” needs to be debunked using the human rights discourse of rights protection for vulnerable groups. There are many authoritative reasons on how affirmative action is a component of the human rights regime. The human rights framework is also comprehensive enough to ensure that affirmative action is not abused and in itself should not lead to the promotion of racial discrimination.
Suhakam should take the initiative to break the political entrapment by political rhetoric and enable the common citizen to understand the issue of race relations better. The time has come for Suhakam to have a cultural committee to handle these issues. Suhakam could also take the opportunity to look internally into its own staffing to ensure that there is a more inclusive employment of its staff and not mirror the civil service that has more than 90 per cent ‘bumiputras’. Again, it has the opportunity to change the social-political landscape using the human rights framework. I am certain that with a fast improving Commission, these changes will see the light of day.
Nevertheless, we must commend the Commissioners for having made a statement during its submission at the UN 11th Human Rights Council meet in Geneva, which highlighted the controversies that has arisen from the mixed marriage between Muslim and non-Muslims at the point of divorce or death. It only proposes clarifying of the jurisdictions on the Syariah and the Civil courts as a remedy but did not give an affirmation of the human rights of persons to their own religions. Human Rights Commissioners are called to give human rights interpretations on the rights of all in the nation.
The role and function of a National Human Rights Institution (NHRI) like Suhakam is the “central place in the national human rights protection system” as affirmed by Mrs. Navi Pillai, the United Nations High Commissioner for Human Rights. Suhakam has a central role to take up the issues of cultural rights in Malaysia as a way to bring the discussion to the fore front; and in order to play its role as a prevention mechanism for difficult human rights issues.
Vulnerable groups impacted by ESCR
It is commendable that Suhakam has given visibility to some of the issues of the most vulnerable by organising numerous roundtables discussions and workshop with the affected communities. These are highlighted below.
Suhakam has been quite consistent in following through with the issues of anti-trafficking, workers’ rights, indigenous people’s rights, ethnic minorities as well as other issues. Of the above groups, Suhakam has given them visibility and voice and highlighted their situation in a systematic way. These are Suhakam’s recommendations.
i. Trafficked Persons in Malaysia
Issues of trafficked Persons in Malaysia have been under the spotlight since the US State Department report of 2009. Reacting to the report, the Malaysian government has moved swiftly to work with different stakeholders to find solutions. The round table organised by Suhakam produced some strong recommendations by all and Suhakam continues to play an active role in the Anti-Trafficking In Persons (ATIP) Council. This is very commendable and it should continue in this direction. Despite its commitment and interest, Suhakam’s statement on the US State report was seemingly quite defensive. Suhakam should be purely interested in the substance of the matters on any human rights report and give credit or criticism on this dimension, despite it being a US State report. If there are substantive flaws then it should be pointed out and if not, then it should feed into the human rights work that is being done by Suhakam.
ii. Workers rights concerns
The economic downturn has impacted the whole nation but it has hit the working class the most, with prices going up and workers being retrenched. As was mentioned in a posting on Malaysiakini:
the Global Financial Crisis impact on workers’ welfare in Malaysia” can be visible with the unemployment problem faced by migrant workers, who are now estimated to be about 20 per cent of the Malaysian labour force – and who are often repatriated during a crisis and thus are not counted in official statistics. Further, changes in workplace (e.g. forced unpaid leave, shorter working hours, change from permanent to contractual work) cloaked the real impact of the crisis on workers. Inflation reached a record high in 2008 as the government reduced costly fuel subsidies….
The roundtable organised by Suhakam in April 2009 was a good avenue to bring to light these issues. The recommendations that Suhakam carried from this meeting are quite substantive and courageous. Amongst some of these recommendations, which echo in unison with the trade unions and other NGOs, are
- The Government should implement a National Retrenchment Scheme to aid retrenched workers. Similar to the Employees Provident Fund (EPF), this would require financial contributions from both employers and employees;
The Government should establish a minimum wage policy to ensure that all workers enjoy a decent standard of living;
- The Government should conduct a study to assess the actual need for foreign labour;
- The Government should ensure employers issue a clear contract of employment and breach of the contract would hold the parties liable before the law;
- The Government should immediately revoke the licences of errant outsourcing companies;
- The Government should monitor labour disputes and ensure that both workers and employers have access to a resolution mechanism; and
- The Government should ensure that projects and industries benefit local communities in terms of socio-economic development. This would reduce the incidence of poverty.
These demands lie at the core of the labour rights violations for years in Malaysia. Having stated this, Suhakam must now venture into finding action-based solutions that can push the government in this direction. Suhakam could develop a programme of engagement with the Labour Department to have some action-orientated programme on these matters, so that workers can attain minimum labour standards that have been lacking in Malaysia for decades. Suhakam can use its mandate to play a more proactive role together with Malaysian Trades Union Congress (MTUC) to initiate a High Level Dialogue Council of all stakeholders on labour matter as a way to move forward. Suhakam must be able to pioneer new ways to break the impasse on the non-compliance of human rights by the government. The Suhakam Act is silent on many possibilities and it is up to its Commissioners to interpret its broadest possible definition for the protection of human rights.
iii. Rights of Indigenous Peoples
Suhakam has done very commendable work in highlighting the plight of indigenous people over the last few years. They have organised more workshops and dialogues with the community in Kuala Lumpur as well as within the communities in the villages. Suhakam has been very visible in the Indigenous Day celebrations in Perak and Pahang as well as in many other meetings in Sarawak and Sabah.
They have also embarked on a research on Land Rights of the Orang Asli; and as a co-organiser of a National Land Conference with selected Orang Asli organisations and NGOs that discussed land matters quite thoroughly. Suhakam played a facilitative role to invite the Deputy Minister and the Directors of the Department for Orang Asli Affairs (now known as JAKOA). This was a crucial function, as it was the first time that there was direct dialogue between the top leadership of the Ministry and independent community based organisation of the Orang Asli. This is unlike the usual practice of the Department which only invites known people for their discussions. In this aspect, Suhakam has utilised its role as a facilitative body for human rights to bring the different stakeholders involved in the protection of human rights to the discussion table. Suhakam should enhance this function more by organising more multi-stake holder dialogues between affected communities and government agencies, parliamentarians, corporate companies, as well as state governments.
Development thrust in Malaysia
There is a growing sense of the need for human rights to be the countervailing force against unbridled development, which is the thrust for almost all developing nations, including Malaysia. Many human rights concerns are sacrificed at the altar of development with a promissory note – the future of the nation demands sacrifices at the present by its people. This is a common argument used by many leader of the past in South East Asia including Malaysia like Dr. Mahathir Mohammed; and it continues till today.
The 2007 report of ERA Consumer states that the government is ever focused on improving the “pie” of development for everyone so that the “trickle down effect” of the wealth of the nation would be felt by the larger population. This view should not be allowed to be the mainstream thinking in a nation as it will sacrifice the human rights of different segments of society. Suhakam needs to be more vocal on this analysis to promote human rights-based approaches to development. This has already been the common call from the United Nations since the launch of the Millennium Development Goal (MDG) in 2000.
This is made even more evident in a web posting by the Global NGO Freedom House which stated that “The fundamental idea behind emphasising ESC rights is that given the trade-offs imposed by scarce resources, governments in underdeveloped countries must prioritise certain aspects of development; given the need to relieve poverty, ESC rights are defined as the most pressing. This claim essentially stems from the adage that ‘you can’t eat democracy’, i.e., that economic growth is urgent to combat deprivation of basic needs, and that Civil and Political (CP) rights are largely irrelevant in the context of dire poverty”.
While this may hold true, in Malaysia the brand of development is focused on economic development, not on an economic rights framework. Suhakam must unmask the difference between an economics-focused development and economic rights-based development. This would help add clarity to the oft-mouthed pronouncements of government policy that it is “for the benefit of the people”.
Suhakam has started addressing this through its dialogue with communities affected by the proposed Murum Dam in Sarawak. This is one of the impacts of development i.e. dam construction is meant for the nation but it usually exacts a heavy toll on a large segment of the community. How can a nation balance development with human rights? Addressing these macro-economic and macro-development questions would be a priority in Malaysia to affect government policies on development. Suhakam can open pathways that stimulate these discussions.
Malaysia’s Universal Periodic Review (UPR)
Malaysia’s turn at the UPR review in Geneva before the human rights council was on 29 February 2011. Suhakam took an active role in submitting its report and also participated in the meetings in Geneva and also issued press releases on its statement. The general comment after the completion of this exercise has been on the civil political rights issues on Malaysia, which are very urgent and needed. But little has been said about ESCR issues that have an impact on people.
On this note, it is important to look at the recommendations that have come out from the UN UPR process and use that as a strong clarion call for the government to take action. It is therefore to Suhakam’s credit it has called for the ratification of all conventions since its inception and continues to do so today. Among the other conclusions and recommendations that the Malaysian government has agreed to adhere to, which are closely linked to ESC rights, are:
- to continue the rigorous human rights capacity-building programmes that Malaysia has initiated in this area, particularly for public officers, which include the judiciary, law enforcement personnel and lawyers;
- to continue its efforts in providing educational facilities to students with special educational needs;
- to continue to carry out further measures to reduce poverty and redouble its efforts to strengthen relations and harmony among the different races in the country;
- to continue with positive efforts to promote economic, social and cultural rights, particularly the priority given to health, education and the care of the disabled;
- to continue to take proactive and innovative measures to ensure sustainable development policies related to the promotion of economic, social and cultural rights in the country;
- to maintain its commitment to realising the Millennium Development Goals in parallel with striving for economic success;
- to continue to take effective policies to ensure adequate housing for all citizens and in particular for those in the lower income bracket;
- to adopt the measures necessary to guarantee freedom of religion;
- to ensure comprehensive and universal access to health services for citizens and non-citizens alike, including migrant workers, refugees, asylum seekers, indigenous peoples;
- to adopt the necessary measures to prevent abuses against migrant workers and respect for their rights; and
- to allow migrant domestic workers full access to legal remedies in cases of abuse and duly investigate all cases of abuse and bring perpetrators to justice; to take effective steps to protect migrant workers from attacks from militia groups; to ensure that the pre-departure training centres are operated to meet the basic needs of the workers and do not encourage any form of abuse.
These recommendations are documented proof that the Malaysian government has publicly stated its willingness to improve. Suhakam can play a leading role in monitoring its implementations on promises made as the government has not come back to civil society on the progress. It can again be the keen watchdog on government compliance as much needs to be done for greater human rights compliance here in Malaysia.
The call to fight poverty and minimise impact on the vulnerable communities has already been heard. But the call on abuse of migrant workers and refugees is a loud call and Suhakam can increase its focus on this vulnerable group in Malaysia.
Suhakam should demand that the Government move forward into developing its National Action Plan (which it has not yet developed) as was agreed upon by all member nations of the UN a decade ago. The government is slow in initiating this and Suhakam should take the initiative to take the lead
Suhakam’s potential for taking the lead in human rights issues in Malaysia is enormous, and together with other civil society actors, it can play a critical, engaging role with the government. It has grown tremendously, and it must walk more boldly as a truly independent Commission whilst not being influenced by its past affiliations with government or business. The majority of Commissioners come with a history of working within the government or the private sector.
This is important as the nation looks on the Commissioners as guardians of human rights where the government has failed and the judiciary has not lived up to its mark. ESC rights are the common persons’ concern and needs defending and voicing out.
As Malaysia races down the corridors of economic development, only human rights entities such as NGOs and NHRIs like Suhakam can play a pivotal role in ensuring that the rights of the people are not neglected and the negative impact of development is minimised. The task is huge, the demand is mountainous but the potential for a positive outcome exists despite the many limitations in law and practice. Suhakam will have to step up and move into high gear in this respect.
Jerald Joseph is Executive Director of Dignity International
2011. The above was his review of Suhakam’s 2009 report on Economic, Social and Cultural Rights.