Special Review of the Human Rights Commission of by the Sub- Committee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights, 2010

Submitted by Suara Rakyat Malaysia (SUARAM) and the Education and Research Association for Consumers, Malaysia (ERA Consumer Malaysia)

1.0 Introduction

This submission for the Special Review of the Human Rights Commission of Malaysia (SUHAKAM) by the Sub-Committee on Accreditation (SCA) of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) focuses on: (1) the application of the new selection process of SUHAKAM; and (2) the inclusion of the new Key Performance Indicators in the appointment and dismissal of Commissioners.

Besides our assessment of these two aspects, this submission also raises another major concern with regard to SUHAKAM’s performance in the promotion and protection of human rights: The delay in the appointment of new Commissioners in 2010 following the end of the respective terms of all Commissioners from the previous batch. As a result of this delay, SUHAKAM operated without Commissioners for more than one month, seriously disrupting the work of the Commission during that period.

2.0 Flawed Application of the New Selection Process

While civil society organisations anticipated the setting up of the selection committee in early 2010 (following the imminent expiration of the terms of incumbent Commissioners on 23 April 2010), no development relating to the new selection process was made public by the government until February 2010.

2.1 Selection Committee Kept Secret

Among the amendments made in July 2009 was the inclusion of a new five-member selection committee which would advise the Prime Minister in the selection process. However, the Prime Minister has full discretion to appoint whoever he deems fit to represent civil society in the selection committee, raising concerns among civil society organisations.

Due to these concerns, on 1 February 2010, SUARAM sent an invitation to then- SUHAKAM Chairperson Abu Talib Othman – who, as the incumbent chairperson of the Commission, is one of the two automatic members of the five-member selection

1 committee – for a dialogue with Malaysian civil society organisations to obtain updates on the selection committee, especially on how the three civil society representatives in the selection committee would be appointed and how the selection committee would carry out the selection process.

However, on 4 February 2010, the then-SUHAKAM Chairperson declined SUARAM’s invitation, stating that the selection committee had already been set up but yet to meet, and as such, he was in no position to provide any information pertaining to the new selection process.1

It must be noted that the setting up of the selection committee was never announced publicly and officially by the government, and it was only through the then-SUHAKAM Chairperson’s letter that civil society organisations were informed that the selection committee had already been set up.

On 1 April 2010, less than one month before the respective terms of the incumbent commissioners expired, online news portal Malaysiakini reported that it was unable to obtain confirmation of the appointment of the three “civil society representatives” in the selection committee. The news report, titled, “Suhakam replacements shrouded in secrecy”, revealed that Malaysiakini had received information from undisclosed sources that the Bar Council vice president, Lim Chee Wee; Director of NAM (Non-Aligned Movement) Institute for the Empowerment of Women Malaysia, Rafiah Salim; and former Chief Judge of Malaya, Haidar Mohamed Nor, were appointed to sit in the selection committee. However, the three individuals refused to confirm their appointments.2

It was only on 6 April 2010, when an Opposition Member of Parliament queried the government in Parliament, that Deputy Minister in the Prime Minister’s Department Liew Vui Keong confirmed the three names which were reported by Malaysiakini on 1 April 2010 as the appointed “civil society representatives” in the selection committee.3

2.2 Selection Process Not Inclusive and Transparent, Extremely Short Period for Nominations

Later in the month of February 2010, several Malaysian civil society organisations received letters of nomination for the selection of new commissioners. The letter, dated 12 February 2010 and signed by the Director-General of the Prime Minister Department’s Legal Affairs Unit, provided each organisation with one nomination. However, only selected organisations received this letter. The letter also stated that nominations should be made no later than 1 March 2010. Considering that most civil society organisations

1 Letter to Mr. John Liu, “Re: Invitation to a Dialogue with Malaysian NGOs on the Developments of the New Selection Process of SUHAKAM”, 4 February 2010, signed by Tan Sri Abu Talib Othman. 2 See “Suhakam replacements shrouded in secrecy”, Malaysiakini, 1 April 2010, http://www.malaysiakini.com/news/128118 (accessed on 23 June 2010). 3 Liew Vui Keong (6 April 2010) First Meeting, Third Session of Twelfth Parliament, Hansard, DR.6.4.2010 (p. 11) http://www.parlimen.gov.my/hindex/pdf/DR-06042010.pdf (accessed on 23 June 2010).

2 only received the letter in the last week of February 2010,4 the timeframe given to make nominations was extremely short.

In response, SUARAM, together with two other organisations which received the nomination letter – Amnesty International Malaysia and Tenaganita – wrote a letter to the Prime Minister’s Department on 22 February 2010, urging the latter to open up the process to all members of the public by making the same nomination form available on the department’s website and announcing publicly the opening of the nomination process. This is to ensure inclusiveness in the selection process. The groups also urged the government to reveal the names of the three members of the selection process who were supposedly appointed from amongst members of civil society.5 However, none of the recommendations was implemented by the government up to the time when the names of seven new commissioners were announced on 7 June 2010.

On 24 February 2010, civil society organisations sent another letter – this time signed by 29 organisations and addressed to the Chief Secretary to the Government as the designated chairperson of the selection committee – making several demands with regard to the selection process, inter alia:

- That the selection committee to ensures that members of the Commission be selected from a pool of qualified candidates proposed through a transparent, participatory and inclusive process guided by the Paris Principles and international human rights standards. On this aspect, the 29 civil society organisations recommended that the selection committee makes public through its own means all names and profiles of candidates received and being considered. - That the selection committee holds public interviews where each candidate’s qualifications, competence and integrity can be thoroughly and adequately reviewed by the selection committee, with the public fully informed of the process, merits of each candidate, as well as the basis of the committee’s decisions.6

However, as was the case with the Prime Minister’s Department, none of the recommendations by civil society was implemented in the entire process – up until the announcement of the names of the new commissioners.

Both the Prime Minister’s Department (which coordinated the selection process) and the Chief Secretary to the Government in his capacity as the designated chairperson of the selection committee did not reply to the letters sent to them by civil society organisations. Subsequently, the selection committee operated in a secretive manner, with no news or statements on the development of the status of the selection process.

4 SUARAM received the official nomination letter by post on 22 February 2010. 5 Letter to Dato’ Abdullah Sani Ab Hamid, “Re: Nominations for the Appointment of Members of the Human Rights Commission of Malaysia (SUHAKAM) for 2010-2013”, 22 February 2010, signed by SUARAM, Amnesty International Malaysia, and Tenagnita. 6 Letter to Tan Sri Mohd Sidek Haji Hassan, “Re: New Selection Process of Members of the Human Rights Commission of Malaysia (SUHAKAM)”, 24 February 2010, signed by 29 civil society organisations.

3 2.3 Government Says NGOs Need Not Be Consulted

On 6 April 2010, Opposition Member of Parliament questioned the government of its reasons for not consulting with civil society before setting up its selection committee. In response, Deputy Minister in the Prime Minister’s Department replied by saying, “There is no provision in the enabling law of SUHAKAM that says the Prime Minister needed to discuss with NGOs before making the appointments.”7

2.4 Two Candidates Omitted – No Explanation by the Government

Then on 21 April 2010, newspaper reported that the selection committee has selected nine names to be considered by the Prime Minister for the appointment to SUHAKAM. They were:8

1. Malaysia’s former United Nations permanent representative Tan Sri Hasmy Agam; 2. Indigenous rights activist from ; 3. National Customary Rights advocate and lawyer Detta Samen from Sarawak, 4. Children’s rights activist Dr James Nayagam; 5. Women’s rights activist Maria Chin Abdullah; 6. FOMCA (Federation of Malaysian Consumers Associations) secretary-general Muhammad Sha’ani Abdullah; 7. Former ABIM (Malaysian Islamic Youth Movement) president Ahmad Azam Abdul Rahman; 8. Universiti Malaya deputy vice-chancellor Prof Datuk Dr Khaw Lake Tee; and 9. International Institute of Islamic Thought and Civilisation deputy dean Prof Datuk Dr Mahmood Zuhdi Abd Majid.

Following this, there was no further development for more than one month until the Prime Minister finally announced the appointment of seven new Commissioners on 7 June 2010, with former diplomat Hasmy Agam named as the Chairperson of the Commission.9 All seven were part of the nine names recommended by the selection committee to the Prime Minister. Two others who were also recommended by the selection committee, Maria Chin Abdullah and Ahmad Azam Abdul Rahman, did not make the cut. No explanation was given for the omission of these two candidates, while the reasons for appointing the seven were also not made known.

Concerns over the fact that the Prime Minister is not compelled to accept all recommendations made by the selection committee have been raised since the enabling

7 Liew Vui Keong (6 April 2010) First Meeting, Third Session of Twelfth Parliament, Hansard, DR.6.4.2010 (p. 11) http://www.parlimen.gov.my/hindex/pdf/DR-06042010.pdf (accessed on 23 June 2010). 8 “Suhakam gets nine candidates”, The Star, 21 April 2010, http://thestar.com.my/news/story.asp?sec=nation&file=/2010/4/21/nation/6100672 (accessed on 23 June 2010). 9 “Hasmy Agam new Suhakam chairperson”, Malaysiakini, 7 June 2010, http://www.malaysiakini.com/news/133893 (accessed on 23 June 2010).

4 law of SUHAKAM was first amended in March 2009. In the March 2009 amendments, there was a provision which stated that the selection committee’s recommendations are not binding upon the Prime Minister. This provision, however, was deleted in July 2009. Thus, the enabling law of SUHAKAM is currently silent on whether the Prime Minister is obliged to accept the recommendations of the selection committee. As such, the Prime Minister effectively continues to have discretion in the appointment process, having the choice not to accept the recommendations of the selection committee.

3.0 Key Performance Indicators Remain Unclear

There is no provision in the enabling law of SUHAKAM – the Human Rights Commission of Malaysia Act 1999 (Amended 2009) – to ensure that the performance indicators are “clearly established; appropriately circumscribed, so as not to interfere in the independence of members; and made public”, as was recommended by the ICC- SCA.10

On 12 August 2009, SUHAKAM held a meeting with several civil society organisations to discuss on the possible indicators which would be proposed to the Malaysian government. In the meeting, SUHAKAM proposed that the indicators be specific, measurable, achievable, realistic, and time-bound. Several key result areas and key performance indicators were proposed to be further developed into concrete proposals to the Malaysian government.

Notwithstanding this, it is not known if SUHAKAM’s proposals have been accepted by the government. Thus, it remains to be seen if the final proposal for these performance indicators would improve or instead further interfere in the independence of members of the Commission. To date, the government has not yet made public the performance indicators for the re-appointment and dismissal of Commissioners.

Furthermore, as the performance indicators would be used for re-appointment and dismissal of Commissioners, a proper assessment can be made when the indicators are actually used. As of the time of submission of this report, the indicators have not yet been used as the seven new Commissioners were only appointed on 7 June 2010 (therefore there has not been any dismissal), while all previous Commissioners were ineligible for re-appointment because they have all served the maximum two-term in office (therefore there has not been any re-appointment).

However, the following observations can be made at this stage:

i. Under the enabling law of SUHAKAM, the performance indicators will be determined by the Prime Minister. Assessments made by the Prime Minister based on these indicators would be used as a basis of re-appointment and removal of any member of the Commission. As such, the proposals for

10 International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (March 2009) “Report and Recommendations of the Sub-Committee on Accreditation”, Geneva, 26-30 March 2009, (p. 10).

5 performance indicators currently being developed by SUHAKAM are merely proposals, with no guarantee of implementation by the government.

ii. In reality, the Prime Minister still holds discretionary powers to determine the mechanisms and indicators which would be used as a basis for re-appointment and dismissal of Commissioners. On the same note, we are also concerned that the power to re-appoint and remove members of the Commission still largely lies in the hands of the Prime Minister.

4.0 SUHAKAM without Commissioners for More Than One Month

For a period of more than one month – from 23 April 2010 to 7 June 2010 – SUHAKAM operated without any Commissioners in office following the end of the respective terms of the previous batch of Commissioners. A news report on 12 May 2010 stated that SUHAKAM received 136 complaints with regard to allegations of human rights violations but no investigation or further action could be made because of the absence of Commissioners.11 As the new Commissioners were only appointed on 7 June 2010, the number of complaints would have increased from the 136 that was reported.

5.0 Conclusion

On the first issue that will be considered by the ICC-SCA, the entire selection process – from the appointment of the “civil society representatives” in the five-member selection committee to the nomination and appointment of Commissioners – has been flawed. The three “civil society representatives” in the selection committee were appointed by the Prime Minister based on unknown criteria, while their identities were not made known until the government was forced to answer a question posed in Parliament by an Opposition Member of Parliament. Meanwhile, nomination forms were only sent to a selected list of civil society organisations, with no effort by the government to make the process accessible to the wider public. Furthermore, while the selection committee was believed to have submitted nine names to the Prime Minister for his consideration, only seven were eventually appointed. No reason was given as to why only seven of the nine candidates short-listed by the selection committee were appointed – underscoring the lack of transparency in the entire process. Recommendations by civil society organisations to ensure a more open, inclusive and transparent process were ignored by the government as well as the selection committee.

On the second issue for the consideration of the ICC-SCA, while it is not possible for an assessment of the application of the newly-established performance indicators (because there has not yet been any re-appointment or dismissal), the government has not made the matter any clearer than it was when SUHAKAM was last reviewed in November 2009. The government has yet to specify and make public what the indicators are and how they will be used in the future re-appointment and dismissal of Commissioners. As such, the

11 “Complaints pile up in empty Suhakam”, The Malaysian Insider, 12 May 2010, http://www.themalaysianinsider.com/malaysia/article/complaints-pile-up-in-empty-suhakam/ (accessed on 23 June 2010).

6 ICC-SCA’s previous recommendation that the performance indicators in the re- appointment and dismissal of SUHAKAM Commissioners are “clearly established; appropriately circumscribed, so as not to interfere in the independence of members; and made public” has not been addressed.

Lastly, the Malaysian government delayed the appointment of the new SUHAKAM Commissioners for more than one month after the previous Commissioners had stepped down, resulting in a vacant Commission and a serious disruption of SUHAKAM’s work in the promotion and protection of . This delay is especially unacceptable considering the fact that the selection process was largely conducted in a non-transparent and non-inclusive manner.

6.0 Recommendations

We thus urge the ICC-SCA to recommend the following to SUHAKAM and the Malaysian government:

i. Appointment of the three “civil society representatives” in the selection committee The ICC-SCA should raise its strongest concern on the non-transparent and non-inclusive process in the appointment of the three “civil society representatives” in the five-member selection committee.

The Malaysian government must also be taken to task for stating that NGOs need not be consulted in the setting up of the five-member selection committee.

The ICC-SCA should recommend that the specific provision in the enabling law which establishes the five-member selection committee be amended to specify the definition of “civil society” to limit the discretion of the Prime Minister in these appointments. Furthermore, the government should adhere to the principle of inclusiveness by consulting civil society organisations before appointing the selection committee members.

ii. Nomination process The ICC-SCA should raise its strongest concern on the non-transparent process in the nomination and appointment of Commissioners. The non- transparent principle was seen in the short-listing of candidates by the selection committee as well as in the final appointment by the Prime Minister.

The period for public nomination should also be lengthened and efforts must be made by the government to ensure that such a process is accessible to the public.

7 The ICC-SCA should recommend that the Malaysian government ensures a more transparent and inclusive nomination and appointment process at all levels of decision-making.

iii. Role of the selection committee The ICC-SCA should seek an explanation as to why only seven out of the nine short-listed names were appointed by the Prime Minister.

The ICC-SCA should recommend that the selection committee makes public the basis of its decisions in the short-listing of candidates, while the Prime Minister makes known publicly the basis of his decisions if he decides exclude candidates recommended by the selection committee.

The selection committee’s role must also be clarified by further amendments to the enabling law of SUHAKAM. Currently, the enabling law does not spell out whether the Prime Minister is obliged to accept the recommendations made by the selection committee.

iv. Performance indicators Noting that the ICC-SCA’s previous recommendation has not been addressed, it should strongly reiterate that there must be immediate guarantees that the performance indicators are “clearly established; appropriately circumscribed, so as not to interfere in the independence of members; and made public”.

v. Delayed appointment of Commissioners The ICC-SCA should register its deepest concern regarding the delay in the appointment of new Commissioners, which resulted in a vacant SUHAKAM for a period of more than one month. This is indeed a matter of serious concern and must be avoided in the future.

As such, the ICC-SCA should urge the Malaysian government and SUHAKAM to develop a mechanism in the appointment and re-appointment of SUHAKAM Commissioners to avoid such situations in the future.

Contact persons:

John Liu Nor Azwani binti Abdul Rahman Coordinator Legal Executive of Human Rights Desk Suara Rakyat Malaysia (SUARAM) ERA Consumer Malaysia 433A, Jalan 5/46 Gasing Indah, 46000 No.24, Jalan SS1/22A, , , Malaysia 47300, Petaling Jaya, Tel: +60377843525 Selangor Darul Ehsan, Malaysia Fax: +60377843526 Email: [email protected] Email: [email protected] / [email protected]

8 Annex 1

SUARA RAKYAT MALAYSIA

Address: 433A, Jalan 5/46, Gasing Indah, 46000 Petaling Jaya, Selangor, Malaysia. Telephone: +6 03 7784 3525 Fax: +6 03 7784 3526 Email: [email protected] Web: www.suaram.net

22 February 2010 Dato’ Abdullah Sani Ab Hamid Ketua Pengarah Bahagian Hal Ehwal Undang-Undang, Jabatan Perdana Menteri Aras 7, Bangunan Hal Ehwal Undang-Undang Presint 3, Pusat Pentadbiran Kerajaan Persekutuan 62692 Putrajaya

Dear Sir,

Re: Nominations for the Appointment of Members of the Human Rights Commission of Malaysia (SUHAKAM) for 2010-2013

With reference to the above, Suara Rakyat Malaysia (SUARAM), Amnesty International Malaysia and Tenaganita acknowledge receipt of the invitation to submit nominations of candidates for the appointment of members of the Human Rights Commission of Malaysia (SUHAKAM), in a letter from your department dated 12 February 2010.

2. In acknowledging the current efforts of the government to make the selection process of SUHAKAM Commissioners open and transparent, we would like to recommend that the process be made open to all members of the public to ensure that the process is truly inclusive.

3. We note that the International Coordinating Committee of National Human Rights Institutions (ICC) had recommended in March 2009 that the appointment process of SUHAKAM Commissioners “may be further strengthened through inclusion and participation of civil society”. And while the ICC has given SUHAKAM the “A” status in November 2009, the international body will nonetheless again review the new selection process, in particular to assess whether this new process is applied in accordance with international standards.

4. In order to ensure that the new selection process is truly in line with the international standards of inclusiveness, we suggest that the same nomination form received by us be made public on the website of the Prime Minister’s Department and that the government makes a public announcement of the opening of the nomination process of SUHAKAM Commissioners.

5. To encourage a more meaningful participation from a wide range of civil society organisations, we offer to provide your department with a comprehensive list of contact details of such organisations, especially those working on human rights. (Please see attached.) We hope that your department will then be able to forward the nomination forms to each of the organisations provided by us.

6. In our own efforts to make this selection process as democratic as possible, SUARAM, Amnesty International Malaysia and Tenaganita volunteer to disseminate the nomination form as

9 widely as possible to our own networks of Malaysian civil society organisations. We hope that by doing so, nominations by other civil society organisations would also be considered in this process.

7. In view of the short timeframe given to nominate candidates, with the deadline of 1 March 2010, we would like to request that the deadline be extended to 7 March 2010. While recognising the fact that the terms of service of all current Commissioners will end in April 2010 and that these positions need to be filled promptly, we are nevertheless of the view that a process which is open and inclusive is of utmost importance to ensure that the most suitable and qualified candidates are appointed into the Commission.

8. We further recommend that all nominated candidates’ names and profiles received by your department also be made available to the public on the website of the Prime Minister’s Department upon the nomination deadline. This is to ensure that the nomination process is truly transparent and open before these nominations are considered by the five-member selection committee.

9. Lastly, we thank you for your attention and reaffirm our commitment to the advancement of human rights in the country. We look forward to your favorable reply and the opportunity to contribute to your work.

Should you have any questions, please contact the representative of the undersigned civil society organisations, John Liu of SUARAM, at 03-7784 3525 (tel); 03-7784 3526 (fax); or [email protected] / [email protected] (email).

Yours truly,

John Liu SUARAM Coordinator on behalf of:-

1. Amnesty International Malaysia 2. SUARAM 3. Tenaganita

CC:-

1. Tan Sri Mohd Sidek Haji Hassan Ketua Setiausaha Negara Pejabat Ketua Setiausaha Negara Aras 4, Blok Timur, Bangunan Perdana Putra Pusat Pentadbiran Kerajaan Persekutuan 62502 Putrajaya Fax: 03-8888 3382

2. Tan Sri Abu Talib Othman Chairman SUHAKAM Level 29, Menara Tun Razak, Jalan Raja Laut, 50350 Kuala Lumpur Fax: 03-2612 5620

10 Annex 2

SUARA RAKYAT MALAYSIA

Address: 433A, Jalan 5/46, Gasing Indah, 46000 Petaling Jaya, Selangor, Malaysia. Telephone: +6 03 7784 3525 Fax: +6 03 7784 3526 Email: [email protected] Web: www.suaram.net

24 February 2010 Tan Sri Mohd Sidek Haji Hassan Ketua Setiausaha Negara (Chief Secretary to the Government) Pejabat Ketua Setiausaha Negara Aras 4, Blok Timur, Bangunan Perdana Putra Pusat Pentadbiran Kerajaan Persekutuan 62502 Putrajaya Tel: +603 8888 1480 Fax: +603 8888 3382

Dear Sir,

Re: New Selection Process of Members of the Human Rights Commission of Malaysia (SUHAKAM)

With reference to the matter above, we, the undersigned Malaysian civil society organisations are writing to you in your capacity as the Chairperson of the five-member selection committee, newly set up under Section 11A of the Human Rights Commission of Malaysia Act 1999 (Amended 2009), tasked to advise the Prime Minister on the selection of SUHAKAM Commissioners.

2. We firstly welcome the setting up of the selection committee and its role in the new selection process of members of SUHAKAM. We view this as a very important step towards ensuring an open, transparent and inclusive process in the selection of SUHAKAM Commissioners, as well as the advancement of human rights in the country in general. As a first step, the names of all members of the selection committee should be made public immediately.

3. Having said that, we would also like to express our concerns with regard to the application of the new selection process and the criteria for appointments of SUHAKAM Commissioners. We thus urge the selection committee to take up the following recommendations:-

i. Criteria for Office We believe that the selection of independent, impartial and professional candidates with high integrity and recognised competence in the field of human rights are necessary to ensure the effectiveness and credibility of SUHAKAM to fulfill its mandate as the national human rights institution of Malaysia.

Section 5(3) of the enabling law of SUHAKAM states that “[t]he members of the Commission shall be appointed from amongst men and women of various religious, political, racial backgrounds who have knowledge of, or practical experience in, human rights matters”.

11

With regard to Section 5(3) we are particularly concerned that the language used to formulate the criteria for SUHAKAM Commissioners, i.e. those “who have knowledge of, or practical experience in, human rights matters” may be interpreted in such a manner that individuals who do not necessarily have the experience in the field of human rights may be appointed to the Commission. As it is imperative for SUHAKAM Commissioners to have a solid understanding on human rights matters, we urge the selection committee to interpret the said provision in a manner which would ensure such by selecting only those who have been involved in the protection and promotion of human rights in the country. ii. Composition Membership in the Commission should reflect a balanced representation of the genders. The pool of qualified candidates from which members of the Commission are selected should represent different sectors, backgrounds, and thoughts of society to ensure pluralistic representation.

Further referring to Section 5(3), we are equally concerned about the inclusion of persons from different political backgrounds in the Commission. While the appointment of Commissioners from various political backgrounds could contribute to pluralism in the Commission, we would like to caution the selection committee that clear affiliations of Commissioners with any political party could compromise the independence of SUHAKAM.

As such, we recommend that candidates who have stood in the country’s elections in the last five years – in either the federal or state levels – be disqualified from being considered for appointment as SUHAKAM Commissioners.

We also note the public perception that SUHAKAM’s effectiveness and independence has been undermined by the appointment of former government servants, who have made up a majority of SUHAKAM Commissioners appointed in previous years.

We therefore recommend that the selection committee sets a maximum of 20% of those to be shortlisted for appointment to the Commission be from amongst former government servants. This is vital to ensure that decisions of the Commission are not determined by virtue of the views of Commissioners from similar backgrounds, especially in view of the fact that a two-thirds majority of votes by Commissioners is needed in the decision making of SUHAKAM when consensus cannot be achieved. iii. Selection Process We also believe that a transparent, participatory and inclusive selection process with inputs from all stakeholders is necessary to ensure the effectiveness and credibility of SUHAKAM as well as the selection committee. While appreciating that Section 11A(5) provides that the selection committee may determine the conduct of its own proceedings, in our commitment to advocate for a selection process which is open, transparent and inclusive, we strongly urge that the selection process be:

a) open and meaningful, with the involvement of all social actors to ensure pluralist representation, consideration for gender balance, and the widest participation; b) conducted in a transparent and open manner in which the public is fully, accurately and continuously informed of its progress and decisions; and

12 c) monitored and evaluated by the public at large and by the legislature.

In order to do so, members of the Commission shall be selected from a pool of qualified candidates proposed through a transparent, participatory and inclusive process guided by the Paris Principles and international human rights standards.

To do so, we have written to the Prime Minister’s Department to request for the nomination form to be made public through its website and a public announcement regarding the opening of the nomination process. We have also urged the Prime Minister’s Department to make public all candidates’ names and profiles on its website.

In the same vein, we urge the selection committee to also make public through its own means all names and profiles of candidates received and being considered.

In selecting candidates, we urge the selection committee to hold public interviews where each candidate’s qualifications, competence and integrity can be thoroughly and adequately reviewed by the selection committee, with the public fully informed of the process, merits of each candidate, as well as the basis of the committee’s decisions.

4. We respectively request that the selection committee takes our recommendations into serious consideration. If such steps are taken, it will doubtless enhance the credibility of the selection committee and develop public support towards the work of the SUHAKAM Commissioners selected in this process as well as the work of the Commission as a whole.

5. Lastly, we thank you for your attention and reaffirm our commitment in the advancement of human rights in the country as well as in making the selection process of SUHAKAM Commissioners an inclusive, transparent and open one, in accordance with international standards. We look forward to your favorable reply and the opportunity to contribute to your work.

Should you have any questions, please contact the representative of the undersigned civil society organisations, John Liu of Suara Rakyat Malaysia (SUARAM), at +603 7784 3525 (tel); +603 7784 3526 (fax); or [email protected] / [email protected] (email).

Yours truly,

John Liu SUARAM Coordinator, on behalf of the following organisations:-

4. Aliran Kesedaran Negara (ALIRAN) 5. All Women’s Action Society (AWAM) 6. Amnesty International Malaysia 7. Centre for Independent Journalism (CIJ) 8. Centre for Orang Asli Concerns (COAC) 9. Community Development Centre (CDC) 10. Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall 11. Institute for Development of Alternative Living (IDEAL), Sarawak 12. Jaringan Rakyat Tertindas (JERIT) 13. Kumpulan ACTS (A Call To Serve) 14. LLG Cultural Development Centre

13 15. Malaysian Voters Union (MALVU) 16. Malaysian Youth and Students Democratic Movement (DEMA) 17. PACOS Trust (Partners of Community Organisations), Sabah 18. Panggau, Sarawak 19. Watch 20. Persatuan Kebangsaan Hak Asasi Manusia (HAKAM) 21. Persatuan Kesedaran Komuniti Selangor (Empower) 22. Persatuan Masyarakat Selangor dan Wilayah Persekutuan (PERMAS) 23. Pusat Komunikasi Masyarakat (KOMAS) 24. Sarawak Access (SACCESS) 25. Save Ourselves (SOS), Penang 26. Sisters in Islam (SIS) 27. Solidariti Mahasiswa Malaysia (SMM) 28. Suara Rakyat Malaysia (SUARAM) 29. Tenaganita 30. Women’s Aid Organisation (WAO) 31. Women’s Institute for Research Development and Enhancement (WIRDA) 32. Writers’ Alliance for Media Independence (WAMI)

CC:-

1. Dato’ Abdullah Sani Ab Hamid Ketua Pengarah Bahagian Hal Ehwal Undang-Undang Jabatan Perdana Menteri, Aras 7, Bangunan Hal Ehwal Undang-Undang Presint 3, Pusat Pentadbiran Kerajaan Persekutuan 62692 Putrajaya Fax: +603 8885 1048

2. Tan Sri Abu Talib Othman Chairman SUHAKAM Level 29, Menara Tun Razak Jalan Raja Laut 50350 Kuala Lumpur Fax: +603 2612 5620

3. International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) c/o The National Institution Unit Office of the High Commissioner for Human Rights (OHCHR) CH-1211 Geneva 10, Switzerland

4. Asia Pacific Forum of National Human Rights Institutions (APF) Level 8, Piccadilly Tower 133 Castlereagh Street Sydney NSW 2000, Australia

14 Annex 3

Malaysiakini http://www.malaysiakini.com/news/128118

Suhakam replacements shrouded in secrecy Christine Chan | Apr 1, 10 7:13pm Time is running out for the replacements of the outgoing Suhakam commissioners whose terms expire later this month, as secrecy surrounds the whole process.

According to the new amendment to the Human Rights Commission of Malaysia Act 2009, a commissioner can only serve a maximum of two terms, a total of six years.

Which means the commissioners serving the 2008-2010 term services will end on April 23 and they will have to replaced by then.

Currently Suhakam is made up of 16 members, however, the law allows a maximum of 20.

However, until today there has been no official announcement as to the nominations and how the selection process proceeds.

The law requires that the five member selection committee be headed by the Chief Secretary to the government, the incumbent Suhakam chairman and three other members of civil society appointed by the Prime Minister.

While the identities of the other members were not announced, it is learnt that they are Bar Council vice president Lim Chee Wee, Director of NAM Institute for the Empowerment of Women Malaysia Rafiah Salim and former Chief Judge of Malaya Haidar Mohamed Nor.

No comment

When contacted, members of the selection committee refused any comment or even admit that they are part of the committee.

Instead Malaysiakini was directed to the chief secretary and the legal's affair division of the prime minister's office but they are unavailable for comment.

Suara Rakyat Malaysia (Suaram) coordinator John Liu, had written to the government for the identity of the three committee members but there has no response so far.

15 Earlier in February, Suaram had also written to the chief secretary requesting a transparent and open selection process.

"We suggested that the nomination be open to the public and the selection process be revealed," he said.

He said that while it is good to have qualified people in the commission, it is also important to have strong laws to ensure a high standard of performance.

"For a commission to function well there should be qualified candidates, good laws and proper application of the laws," he explained.

However, he thinks that the amended law is a relative improvement but its application was flawed.

Liu said that the government had extended invitations to various Non-Governmental Organizations (NGO) to nominate a candidate each.

Unhappy campers

But, it is known that some NGOs such as Suaram, Amnesty International Malaysia and Tenaganita have chosen to snub the government as they are unhappy with the lack of transparency in the process.

Contrarywise, Women's Aid Organisation (WAO), Malaysian Bar Council, Empower and Association of Women Lawyers had nominated a candidate each.

One of the nominees, WAO executive director Ivy Josiah said that she hoped that there will be interviews and the selection criteria made public.

She concurred with Suaram's stand that the full list of nominees should be made public.

16 Annex 4

Malay Mail http://www.mmail.com.my/content/32606-parliament-pm-need-not-discuss-ngos-pick- suhakam-selection-committee

Parliament: PM need not discuss with NGOs to pick Suhakam Selection Committee Tuesday, April 6th, 2010 18:17:00

KUALA LUMPUR: The Prime Minister need not discuss with non-governmental organisations (NGOs) when appointing three members to the Human Rights Commission of Malaysia (Suhakam) Selection Committee that will pick commissioners as enshrined under Section 11A (C) of the Human Rights Commission of Malaysia (Amendment) Act of 2009.

Deputy Minister in the Prime Minister's Department, Datuk Liew Vui Keong, said according to Section 11A of the act members of the committee were made up of the Chief Secretary, who was the chairman; the commission's chairman: and three renowned persons appointed by the prime minister.

"There is no provision in the act that says the Prime Minister needed to discuss with NGO's before making the appointments," he said in reply to a question by Teresa Kok (DAP-Seputeh) in Parliament Tuesday.

Kok wanted to know why Suhakam set up the Selection Committee without consulting NGOs earlier.

Liew said the appoinments were also guided by the Paris Principles 1992 that set international criteria for the establishment of an independent human rights commission.

According to the principles those appointed were from NGOs who championed human rights and opposed issues of discrimination, like racial discrimination.

17 Annex 5

The Malaysian Insider http://www.themalaysianinsider.com/malaysia/article/complaints-pile-up-in-empty- suhakam/

Complaints pile up in empty Suhakam By G. Manimaran Bahasa Malaysia Editor May 12, 2010

KUALA LUMPUR, May 12 — A new rule that forces all commissioners to retire simultaneously has left the decade-old Malaysian Human Rights Commission, better known as Suhakam, bereft of people for the first time in its existence and causing complaints to pile up.

All 16 members had to resign last April 23 to enable a new line-up of commissioners to be named, but thus far, Prime Minister Datuk Seri has yet to announce the new appointments, which has lead to uneasiness among human rights activists.

The lack of commissioners came to light when Youth complained about the April 26 death of Aminulrasyid Amzah, three days after the entire commission quit in compliance with amendments to the Suhakam Act.

Three ex-commissioners — Datuk Seri Muhammad Shafee Abdullah, Datuk Dr Michael Yeoh and Datuk Dr Denison Jayasooria — had to be drafted to a special Home Ministry panel to oversee investigations into the schoolboy’s shooting death.

“This is a tragedy,” former Suhakam commissioner Tan Sri Ramon Navaratnam told The Malaysian Insider when commenting on the empty bench in the commission, which was previously led by former Attorney-General Tan Sri Abu Talib Othman.

It is understood the new rule came about when the Suhakam Act was amended last year in response to a threat of being downgraded from status “A” to “B” by an international group, which had urged for Suhakam’s independence to be strengthened by a clear and transparent “appointment/dismissal process”.

The amendment provided for the formation of a five-man committee, which the prime minister is obliged to consult before he recommends names to the King. Media reports said a selection committee has picked nine candidates, including Malaysia’s former United Nations permanent representative, Tan Sri Hasmy Agam, for the new team.

18 “There should be continuity in the Suhakam leadership. I feel that the appointments should be done in stages, not all of them resigning because their terms have expired,” said Navaratnam, who served for two terms until 2008.

The retired civil servant said overlapping terms of office would prevent a vacuum in Suhakam and also enable new commissioners to learn from the “senior” ones. Each term of office is for two years.

Najib himself announced the appointment of the last line-up of 16 commissioners in April 2008, when he was the deputy prime minister.

A former Suhakam commissioner confirmed that they all resigned to comply with the new rule.

“However, the new rule doesn’t look practical... We have to go back to the old practice where the appointments are made in stages, not what is being done now,” he said, declining to be named.

Navaratnam also said that each commissioner’s term of office should be limited to two terms of four years or at the most a maximum of three terms. “There should be limits,” he added.

But PAS vice-president Datuk said the “lack of action in filling the commission, although just for three weeks, is a great tragedy”.

“It is a tragedy for the country for failing to meet the aims of establishing Suhakam,” he said, adding the only way to avoid the problem from recurring was to leave the appointments to a Parliamentary committee.

“I urge the prime minister to bring the issue of appointments to a Parliamentary committee to recommend suitable candidates for the Yang di-Pertuan Agong’s consent,” the Pokok Sena MP told The Malaysian Insider.

He stressed that there should not be any delays in forming a new Suhakam line- up.

Universiti Sains Malaysia’s Associate Professor Sivamurugan Pandian said the importance of Suhakam meant that the government should make early appointments or allow a “caretaker” role for retiring commissioners to ensure continuity.

“It is crucial to make early appointments before a team finishes their term of service. This is important to handle issues that [are] brought to Suhakam, for example, the case of the teenager being shot dead,” he added.

19 In the last round of appointments under sub-section 5 (1) Suhakam Act 1999, the government appointed Tan Sri Abu Talib Othman as chairman; Tan Sri Simon Sipaun; Dr Chiam Heng Keng; Dr Mohammad Hirman Ritom; Tan Sri Asiah Abu Samah; Datuk Dr Raj Abdul Karim; Datuk Dr Abdul Monir Yaacob; Datuk N. Siva Subramaniam; Datuk Choo Siew Kioh; Tunku Datuk Nazihah Tunku Mohamed Rus; Prof Emeritus Dr Khoo Kay Kim; Datin Paduka Zaitoon Othman; Datuk Dr Denison Jayasooria; Datuk Dr Michael Yeoh; Datuk Khalid Ibrahim; and Datuk Muhammad Shafee.

Abu Talib has been chairman since 2002.

The Suhakam Act 1999 allows for the commission to have not more than 20 members and states under subsection 5 (3) that “Members of the Commission shall be appointed from amongst prominent personalities including those from various religious and racial backgrounds”.

20