Special Review of the Human Rights Commission of Malaysia 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 Teresa Kok 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 The Star 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 Jannie Lasimbang from Sabah; 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.