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Malaysia's Human Rights Performance

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Malaysia's Human Rights Performance Malaysia’s Human Rights Performance: Assessment of its First Session of Universal Periodic Review in the United Nations Human Rights Council Ying Hooi Khoo University of Malaya Abstract Since its inception, the Universal Periodic Review (UPR) has been subjected to a substantial amount of criticism. The mechanism began functioning in 2008, however little has been made known about the roles and functions of the UPR. This article explicitly examines the first UPR process of Malaysia in 2009, in order to illustrate how the mechanism operates in practice by highlighting the engagement of Malaysia government with the stakeholders, the follow-up process and the main issues concerned. This article argues that in spite of the excellent diplomacy skills that were portrayed by the Malaysian government in the UPR session, the human rights situation in the country has not improved much. This paper seeks to determine how effective the UPR has been at encouraging human rights reforms nationally by analyzing and assessing the implementation actions of the Malaysian government in response to their accepted UPR recommendations. Introduction The United Nations General Assembly Resolution 60/251 of 15 March 20061 established the United Nations Human Rights Council (hereinafter referred to as the Council) and included the Universal Periodic Review (UPR) as one of its function under paragraph 5(e). The Resolution was adopted by the General Assembly by a majority vote2, after five months of protracted negotiations (Meghna 2006, pp. 11-12) with the objective of being less politicized and selective than its predecessor, the Commission on Human Rights (CHR) (OHCHR 2010. p. 3). The CHR was widely perceived as ineffective in its mission to ‘weave the international legal fabric that protects fundamental rights and freedoms’3. The Council was therefore 1 A/RES/60/251 of 15 March 2006, para 5 (e). 2 A/RES/60/251 was adopted with 170 votes to 4 (United States, Israel, Marshall Islands and Palau), and 3 abstentions (Belarus, Venezuela and Iran). 3 The UN Commission of Human Rights was established in 1946 with the intention to this particular purpose. Initially formed by only 53 member states, the roles were expanded from time to time to allow it to cover the holistic human rights problems. Cosmopolitan Civil Societies Journal, Vol.6, No.1, 2014 19 ISSN: 1837-5391; http://utsescholarship.lib.uts.edu.au/epress/journals/index.php/mcs CCS Journal is published under the auspices of UTSePress, Sydney, Australia created with the introduction of several mechanisms, among them the UPR, to better facilitate the advancement of that particular mission. The Resolution provides that: The Council shall undertake a universal periodic review, based on objective and reliable information, of the fulfillment by each state of its human rights obligations and commitments in a manner which ensures universality of coverage and equal treatment with respect to all states; the review shall be a cooperative mechanism, based on an interactive dialogue, with the full involvement of the country concerned and with consideration given to its capacity-building needs; such a mechanism shall complement and not duplicate the work of treaty bodies4. By nature and by its structure, the UPR is clearly a state-driven exercise. All state actors repeatedly emphasized impartiality, tolerance, cooperation and a harmonious approach in order to conduct a UPR. Such an approach is unique because the mechanism was introduced to consistently and periodically scrutinize a member state on their human rights records on the ground. According to the UN Secretary General, Ban Ki-Moon, the UPR ‘has great potential to promote and protect human rights in the darkest corners of the world’. On 7 April 20085, the UPR mechanism began functioning. While many parties challenge the effectiveness of this process, there has been very little research conducted to evaluate the process and implementation of the mechanism. Literature on Universal Periodic Review Overall, there have been very limited academic writings on UPR. Since its inception, the UPR has been subjected to a substantial amount of criticism from particularly the stakeholders. The following literatures generally provide constructive criticisms and valuable of the UPR process and implementation. Of particular highlight is, nonetheless, the usage of the mechanism for political purposes. Mutual Praise Society, produced by UN Watch, is one of the earliest analyses of UPRs. This study found that ‘out of 55 countries examined including all 47 members of the UN Human Rights Council, only 19 had average scores indicating that overall, the countries whose reviews were analysed, had contributed positively’ (UN Watch 2009, pp. 3-4). UN Watch 4 A/RES/60/251 of 15 March 2006, para 5 (e). 5 The 1st Session of the UPR took place from 7-18 April 2008, with the review of 16 UN member states: Bahrain, Ecuador, Tunisia, Morocco, Indonesia, Finland, United Kingdom, India, Brazil, Philippines, Algeria, Poland, Netherlands, South Africa, the Czech Republic and Argentina. 20 Cosmopolitan Civil Societies Journal, Vol.6, No.1, 2014 was critical of such a congratulatory report, noting the effect of bloc voting on the peer review process. It called on free democracies to act as free democracies in carrying out the UPR process and urged countries not to overlook information on human rights violations submitted by NGOs and to permit a greater role for NGOs in the review process itself. Universal Periodic Review: An Ambivalent Exercise, published by the International Federation of Actions by Christians for the Abolition of Torture (FIACAT), addresses similar issues. In the report, FIACAT notes that the review process is institutionally weak and allows countries to make selective choices where they could categorically reject relevant and important recommendations. FIACAT observes that: ‘the reviews of some countries presented a singular problem: a lack of objectivity. Indeed, on several occasions there was a clear contradiction between the image portrayed of a country at the conclusion of its review... and the issues raised by special procedures, treaty bodies and NGOs’(2009, pp. 15-16). Curing the Selectivity Syndrome, published by Human Rights Watch, also criticizes the response of countries to recommendations particularly in the implementation stage. This report discusses the ‘absence of clear responses’ by some countries and notes that, ‘without such responses, the UPR cannot achieve its purpose of fostering tangible improvements in the protection of human rights. Failure by states to make clear commitments limits the Council’s ability to measure or follow up progress on the ground’. Based on the first cycle of the UPR, McMahon (2012) considered the UPR process an evolutionary process and not revolutionary. He notes that although first cycle of the UPR has resulted in many positive elements, one significant finding is that the UPR still functions through a regional prism. For example, states in Asia and Africa particularly tend to take a softer approach in addressing human rights among themselves. While the UPR’s support from the states may be broad enough because no state refused to take part in the UPR process, this does not necessarily means that UPR is a robust mechanism. Contrary to most of the other reports, Dominguez Redondo (2012) argued that the UPR as a non-confrontational approach to human rights implementation can have an added value provided it acts as a supplement to other work by the UN Charter and treaty-based bodies. Beyond the “naming-and-shaming” approach, this article suggests two key outcomes of the UPR. First, the existence of the compilations of human rights information at country level can Cosmopolitan Civil Societies Journal, Vol.6, No.1, 2014 21 be used as the basis of follow-up for improving human rights in every State. Second, the UPR could contribute to the sources of international human rights. Generally, most of the reports tend to lean towards the negative or rather unsuccessful in their consideration of the implementation of the UPR. At its core, the UPR represents a new and largely untested forum in which states make policy recommendations to each other. The multilateral context in which it functions is highly complex and sensitive. To date, there is limited information and analysis about the actual functioning of the UPR, and virtually no related comparative analysis in the literature (McMahon 2010, p. 5). The Universal Periodic Review Mechanism The detailed basis for the UPR mechanism was set out under the Council Resolution 5/1 of 18 June 2007. There are six purposes of the UPR: (a) the improvement of the human rights situation on the ground; (b) the fulfillment of the state’s human rights obligations and commitments and assessment of positive developments and challenges faced by the state; (c) the enhancement of the state’s capacity and of technical assistance, in consultation with, and with the consent of, the state concerned; (d) the sharing of best practice among states and other stakeholders; (e) support for cooperation in the promotion and protection of human rights; (f) the encouragement of full cooperation and engagement with the Council, other human rights bodies and Office of the High Commissioner for Human Rights (OHCHR)6. Under this resolution, the UPR reviews, in a four-year cycle, the fulfillment by each of the United Nations’ 192 member states of their human rights obligations and commitments. So to speak, the mechanism oversees and evaluates the human rights records and addresses human rights violations of each member state. At the same time, it allows the opportunity for all member states to declare their actions in improving their human rights situation and to overcome challenges to the enjoyment of human rights. The mechanism also intends to enhance the capacity of member states to deal effectively with human rights challenges and for them to share best practices around the globe.
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