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1 of 998 DOCUMENTS New Straits Times (Malaysia) April 23, 2000

A question of balance
BYLINE: By Faezah Ismail SECTION: Focus; Pg. 29 LENGTH: 1857 words

THE Human Rights Commission will meet for the first time tomorrow at Wisma Putra amid mixed feelings over its ability to secure human rights for Malaysians. But if response to consumerist Prof Hamdan Adnan's appointment as one of the 13 commissioners is any indication, there are as many optimists as there are sceptics. "There were calls from people who demanded to know my credentials and from those who wanted to know if the commission could be independent," says Hamdan, a professor of journalism and public relations at Universiti Teknologi Mara and president of the Federation of Malaysian Consumer Associations (Fomca). "Yet others, specifically those representing Malaysia's indigenous people, expressed their hope that I would be able to take up issues affecting their communities," he adds. "Many callers mentioned the fact that I have been a consumerist for 23 years and they see me as somebody who would speak up on human rights abuses. "I get the feeling that there are greater expectations of good things to come from the commission rather than scepticism," says Hamdan. Against that backdrop, Hamdan's answer to his detractors is, "Give the commission a chance to show what it can do." The Human Rights Commission of Malaysia Act 1999 was passed by the Dewan Rakyat and Dewan Negara last year and it was gazetted on Sept 9. Among other things, the commission has the task of monitoring human rights infringements and assisting the Government to formulate legislation and administrative directives and procedures, as well as to recommend measures to be taken.

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Tan Sri Musa Hitam's appointment as head of the 13-member commission was announced by Foreign Minister Datuk Seri Syed Hamid Albar two weeks ago. The much anticipated creation of the Human Rights Commission has generated a lot of interest from all segments of Malaysian society. Some regard the move as a quantum leap in the development of human rights in Malaysia. Others, however, see it as a public relations exercise to boost Malaysia's image internationally in the human rights arena, as borne out by the fact that it is housed at the Foreign Ministry. Human rights defenders decry the lack of transparency and consultation in the setting up of the commission and in selecting commissioners. "That itself is a violation of a fundamental right for citizens because you are talking about consensus, transparency and accountability," says Dr Colin Nicholas, co-ordinator of the Centre For Orang Asli Concerns. "Human rights involve all these and they have not been applied in this case." While law professor Dr Shad Faruqi accepts the validity of the argument, he does not think that there was any deliberate attempt in the passing of the Human Rights Commission of Malaysia Act 1999 to bypass the consultative process because "it is generally not a part of our legislative tradition which it ought to be". Even before the 13 commissioners were appointed, there was criticism that they would simply be "yes men" for the Government. And when the names of the 13 commissioners were finally announced early this month, there were rumblings that they were not the best of choices. "I do not want to make comments on people who have been selected but the commission is short on genuine human rights advocacy people such as Chandra Muzaffar, Sivarasa Rasiah, Syed Husin Ali, Gurmit Singh and Raja Aziz Addruse," says Suara Rakyat Malaysia (Suaram) director Dr Kua Kia Soong. Depending on their viewpoints, people have different perceptions of each of the commissioners' human rights record. "But that is not good enough," says Nicholas. "We need people who are consistently in support of human rights in all fields," he adds. Given that Malaysia places so much emphasis on social and economic rights, to the point that these should dominate civil and political rights, Nicholas says it is sad to note that none from the marginalised sectors such as the indigenous communities and workers were chosen to sit on the commission.

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Faruqi concedes that the commission's membership is imperfect "but then we live in an imperfect world and we have got to accept what there is, and give the commissioners a chance." "I do not deny that there are many other very seasoned campaigners who could have been appointed, but the task of choosing people who would adopt a balanced approach... who would understand the failings and the problems of Government as well as have sympathy for the human rights perspective... I think that job is a difficult one," says Faruqi, who is from Universiti Teknologi Mara. Naming Musa as the first chairman of the commission is, from Faruqi's viewpoint and many others as well, clearly predictable. "I would have been surprised if he was not appointed. None of the other names I could have predicted but his name was a clear choice," he says. Given Musa's exposure to the international discourse on human rights and his understanding of institutional problems, he is in a unique position to adopt a middle path and, as Faruqi puts it: "I think that is what is needed, a balance between the might of the State and the rights of citizens, a balance between order and liberty". HUMAN rights defenders have highlighted other concerns as well. Possibly the gravest shortcoming of the Human Rights Commission of Malaysia Act, 1999, they say, is its narrow definition of human rights. The definition of human rights is set out in Part II of the Federal Constitution which refers to the fundamental liberties, amongst others, the liberty of a person, equality before the law, the freedom of speech, assembly and association. But some of these fundamental liberties have been severely curtailed by the enactment of numerous laws such as the Internal Security Act and Official Secrets Act. The fear is that this will limit the scope of the commission to investigate human rights abuses. Observers have urged the Government to expand the definition to include all rights embodied in other parts of the Federal Constitution, other pieces of legislation with a human rights dimension and international covenants. It should be noted that calls to immediately ratify the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights have been growing louder. That the commission is basically an investigatory body with no power to enforce its decisions is another sore point.

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"Nevertheless, I must point out that this should not prevent the commission from recommending ex-gratia payments in certain cases," says Faruqi. For example, a person arrested under the law and tried according to due process was found guilty and sentenced to imprisonment. Five years later, that individual was released after evidence surfaced indicating that he had been framed. What about the five years he lost? Faruqi says ex-gratia payment here would be perfectly legitimate though ex-gratia by its very nature means there is no right to receive, it is being given out of compassion. The flaws notwithstanding, Faruqi believes Malaysia's Human Rights Commission is a great step forward. "It is an action for many human rights advocates were hoping and praying hard for a long time and I do not think anyone should deny that this is a positive move forward. NICHOLAS is prepared to give the commission the benefit of the doubt and he hopes that it will go beyond its political mandate and secure human rights in this country. The commission's first priority, he says, is to ascertain exactly what Malaysian society perceives human rights to be. The commission's work is made easier by the fact that the understanding of human rights by the various sectors has been clearly defined in various documents, resolutions, recommendations and policy papers. "What the commission needs to do is to assess and compile all these and come up with a comprehensive document on the human rights aspirations of Malaysians," says Nicholas. "Certainly, our concept of human rights must take note of the Malaysian context and we should not accept human rights imperialism from the West," says Faruqi. "I think the commission should listen to all sectors of society including the religious people on their views on human rights," says Faruqi, who believes religion would lend legitimacy to the human rights quest. "Religion makes a law legitimate, it makes it right, not just a legal right but a moral right as well. "So I not only have a legal right to equality but I also have a moral right to equality.

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"I think that is what the blacks in South Africa said, We do not care what the law says, beyond the law of the land there is a higher law and under that higher law we have a right to equality'." The exercise to document people's expectation of the practice of human rights in Malaysia should not be used as an excuse to delay the actual rectification of human rights injustices in this country, says Nicholas. "Since materials on this are readily available, the process should be quick and straightforward," he adds. Having done that, the commission should then look into the obstacles preventing the exercise of full human rights in Malaysia and to ensure that the Government puts in place the necessary legal and political conditions for that to happen. This is to make certain that not just civil and political rights are considered but those of various other sectors as well including women, indigenous people, the disabled, workers, the elderly and all other groups that are marginalised or discriminated against - such as people with HIV. Since one of the functions of the commission is to promote human rights in Malaysia, human rights education is a fundamental responsibility. People will not use the commission unless they are aware what human rights are. "The panel should look into ways by which the public would be better informed about human rights and the education should begin at the primary level," says Nicholas. If the commission wants to achieve credibility, suggests Nicholas, it should set up specialised committees on various aspects of human rights with members drawn from reliable practitioners in their fields. There must also be a commitment from the Government that the recommendations and decisions of the commission will be implemented. The nature of any human rights commission is such that it would constantly be exposed to scrutiny. Even before its first official meeting, the panel has already been attacked for keeping quiet over the arrests of 46 people at last week's demonstration. The commission has also received its first complaint from three SOS (Save Ourselves) members who were detained in a police lock-up in Penang last month for protesting over the rent de-control issue. Monday's meeting will likely be about setting priorities and allocation of responsibilities to individual members, among other things. Clearly, challenging times lie ahead for Malaysia's Human Rights

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Commission.

LOAD-DATE: April 23, 2000 LANGUAGE: ENGLISH GRAPHIC: Picture - Hopeful ... Young Orang Asli from an Orang Asli village in Gombak. Malaysia's indigenous people are hopeful that the National Human Rights Commission will take up issues affecting their communities. If minority rights - be those of gender, ethnic or religious groups - are not respected, the community at large becomes the poorer for it. Picture - Hamdan ... calls from people. Picture - Nicholas ... benefit of doubt. Picture - Kua ... names others. Picture - Faruqi ... need for balance. (STF) - The setting up of Malaysia's Human Rights Commission has prompted much discussion. And given the diverse views on human rights from within and without and controversy over its membership, the commission has quite a balancing act to do, writes Faezah Ismail. Copyright 2000 New Straits Times Press (Malaysia) Berhad