I. The increasing importance of NHRIs in international human rights fora

Since the 1990s, national institutions for the protection and promotion of human rights have proliferated around the globe.Footnote 6 Most commentators have greeted the development as a major advance in the field of human rights, viewing NHRIs as the “practical link between international standards and their concrete application”,Footnote 7 as an important way of embedding international norms in domestic systems,Footnote 8 as a tool for reinforcing the primary role of the state as protector of human rights,Footnote 9 and as an essential part of promoting the rule of law.Footnote 10

NHRIs are assuming an increasingly important role in the implementation of international human rights law. This is particularly so in the Asia Pacific, where at present no regional mechanism for the protection of human rights exists.Footnote 11 But even in those regions which boast highly developed systems of human rights protection, such as the Council of Europe’s system of human rights protection, there are growing calls for the establishment or strengthening of national institutions.Footnote 12

On 20 December 1993, the UN General Assembly endorsed the Paris Principles as the minimum criteria for establishing an independent and effective NHRI. These criteria require: “a clearly defined, broad-based human rights mandate, incorporated in legislation or (preferably) constitutionally entrenched; independence from government; membership that broadly reflects the composition of society; appropriate cooperation with civil society, including NGOs; and adequate resources”.Footnote 13 While acknowledging that NHRIs may be fashioned to suit the unique political and social and environment in which they operate, the Paris Principles require that NHRIs should (at least):

National institutions are accredited by the ICC according to their level of compliance with the Paris Principles.Footnote 15 The ICC consists of representatives from NHRIs in Africa, the Americas, the Asia Pacific, and Europe. Its principal functions are to co-ordinate the activities of NHRIs, to support the creation and strengthening of Paris Principles-compliant national institutions in conformity with the Paris Principles, to liaise with the UN and other international organizations, to ensure regular contact with the Office of the UN High Commissioner for Human Rights (OHCHR), and to implement recommendations of International Conferences of National Institutions, UN resolutions, and recommendations.Footnote 16

Since 2006, “A” status NHRIs have had the right to participate in key UN human rights bodies such as the Human Rights Council, in an independent capacity and on all agenda items. “A” status NHRIs may submit written statements, issue documentation (with a UN document symbol), and are allocated their own separate seating on the Council floor.Footnote 17 “A” status NHRIs also play “a crucial role in all phases of the universal periodic review (UPR), from submission of documentation to attendance of the review and follow-up to recommendations”.Footnote 18

ICC evaluation of a commission as having an “A” status bolsters an institution’s domestic legitimacy and enhances its ability to critique its state’s human rights performance. As a national commission’s ability to be effective at the domestic level increases, civil society is more inclined to engage with an independent commission, and most states are less able to ignore the reports and recommendations of a commission that is publicly perceived to be independent.Footnote 19 The growing significance of NHRIs is reflected in the prominent role they are accorded in more recent human rights conventions. Article 33 of the Convention on the Rights of Persons with Disabilities (CRPD) provides a role for NHRIs as national monitoring bodies for the Convention.Footnote 20 Article 17 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (OPCAT)Footnote 21, requires states to “maintain, designate or establish one or several independent national preventative mechanisms” to visit places of detention at the national level, and Article 19(4) of OPCAT refers specifically to the Paris Principles.Footnote 22

Domestic and international NGOs have expressed some disquiet at the greater prominence being accorded to NHRIs.Footnote 23 They argue that NHRIs are state institutions whose effectiveness and independence is sometimes questionable, and they have concerns about these institutions being seen as the primary or most legitimate providers of critiques of state performance on human rights.

NGO concerns may be grouped around three main themes. First, NGOs are concerned that if NHRIs assume the role of providing the “legitimate” evaluation of state compliance with human rights obligations, civil society critiques will be displaced. They fear the appropriation of the discourse of challenge by a state institution that in most cases lacks the power of genuine grass-roots opposition to state practice and policy.

Second, NHRIs have become one of the indicia of a progressive democratic liberal state: “if in the 1950s, the status symbol of a developing country was a steel mill, in the 1990s, apparently, it was a human rights commission.”Footnote 24 NGOs object to state claims to being a good international citizen by virtue of establishing an institution to promote and protect universal rights, while simultaneously refusing to ratify, or ratifying with substantial reservations, the core international human rights treaties.

Third, NGOs question the efficacy of NHRIs established without sufficient input from civil society organizations, such as institutions set up in post-conflict societies as a specific term of the peace agreement that brings an end to hostilities or marks the emergence of a new political system.Footnote 25

II. Evolving role of the International Co-ordinating Committee of Institutions for the Promotion and Protection of Human Rights

Decisions on accreditation are made by the ICC on the advice of its Sub-Committee on Accreditation (SCA). The Sub-Committee is composed of representatives of each of the four regions of Africa, the Americas, the Asia Pacific, and Europe.Footnote 26 The Secretariat of the ICC is the National Institutions Unit of the OHCHR. In 2006, the ICC established a Working Group to examine the NHRI accreditation process in recognition of:

The Working Group stated “the environment in which National Human Rights Institutions function has evolved since the adoption of the Paris Principles in 1991 and the creation of the ICC. Membership in the Group is given growing importance by international and national actors”.Footnote 28

The Working Group recommended an accreditation procedure which aimed to ensure a process that was fair and impartial and that satisfied the principles of natural justice. Its proposed new procedure was based on the principles of transparency (clear standards and criteria for assessment), rigour (compliance with the spirit as well as the letter of the Paris Principles), and independence (delineated roles, responsibilities, and accountability for both the ICC and the SCA). At the heart of the recommendations was a view that determinations “may have to look beyond technical compliance to examine whether the Institution’s actions demonstrate compliance with some or all of the Principles, to the extent that this can be done in an appropriate, reasonable, consistent and fair manner”.Footnote 29 This statement indicated that the past practice of accreditation “on the papers”, using an “accreditation grid”, where NHRIs supplied supporting documents that indicated the legislative basis for, stated objects of, and mandates of their commissions, would not necessarily secure accreditation.

At present, the SCA makes recommendations to ICC members regarding compliance of applicant institutions with the Paris Principles “in law and practice”.Footnote 30 Two aspects of the SCA’s deliberations are of particular note. First, the SCA is entitled to consider information received from civil society. In its April 2008 Report, the Sub-Committee stated that it “agreed to share that information with the concerned NHRIs”.Footnote 31 Second, since 2006, the SCA has published “General Observations” in relation to accreditation. These observations “are intended to be guidelines for NHRIs concerning the implementation of the Paris Principles”,Footnote 32 to be used by the SCA to advise national institutions and governments on the steps needed to ensure Paris Principles compliance, and to guide the SCA itself in its decisions on (re)accreditation.Footnote 33

These two developments—the ICC’s decision to receive information about NHRIs from third parties such as NGOs, and the ICC’s elaboration of the Paris Principles in its “General Observations”—are indicators of a more demanding standard in assessing compliance. This reflects the increasingly significant role being accorded to NHRIs in the domestic implementation of international human rights and civil society’s insistence that NHRIs are accorded the independence and powers to fulfil their function by the state. The experience of SUHAKAM is illustrative of the evolving dynamic between NHRIs, civil society, regional human rights networks, and the international community.

III. Establishment of SUHAKAM

In 1999, Prime Minister Mahathir Mohamad surprised many with his decision to create the Malaysian Commission on Human Rights. At the time, Malaysian society was subject to four Proclamations of EmergencyFootnote 34 and repressive provisions within legislation such as the Official Secrets Act, the Printing Presses and Publications Act, the Sedition Act, and the Police Act.Footnote 35 There had been domestic and international condemnation of the government’s treatment of Datuk Seri Anwar Ibrahim, political rival and critic of the Mahathir regime (though formerly a political ally of Mahathir and his Deputy Prime Minister), after the infamous “black eye” incident.Footnote 36 The nascent Reformasi movement was being repressedFootnote 37 and the Barisan Nasional (BN)Footnote 38 government was responding to “popular, legitimate and lawful expressions of dissent with fiercer repression against the leaders of legal opposition parties, social activists, and the promoters of the alternative media”.Footnote 39 Malaysia’s Internal Security Act of 1960 was being deployed to suppress political opposition.

There appears to have been no single catalyst for the establishment of SUHAKAM. It seems that a set of complex and somewhat contradictory motives underpinned Mahathir’s decision to accede to the request of his former Deputy Prime Minister, Tun Musa Hitam, to establish a national human rights commission. It is likely that Mahathir saw the move as politically expedient from a number of perspectives. First, it had the potential to appease domestic civil society, which was growing increasingly vociferous under the Reformasi movement. Second, the move might placate the international community, outraged by the Mahathir government’s treatment of Anwar Ibrahim. Third, three of Malaysia’s influential ASEAN neighbours (the Philippines, Indonesia, and Thailand) had established or were in the process of establishing their own NHRIs. Mahathir saw no reason why Malaysia should not join the ranks of these progressive ASEAN states. It also appears that the personal influence of Musa Hitam played a part in Mahathir’s decision.

The factors which motivated the government to establish SUHAKAM, and the interplay between them, contributed to SUHAKAM’s shape at birth and to the manner in which it functioned in its early years. The decision to establish SUHAKAM generated at least three different sets of expectations about the role that the body would fulfil in Malaysian society: the expectations of the ruling power elite, of civil society, and of the international community. The ICC’s notification of its possible downgrading of SUHAKAM in April 2008, primarily reflects a crystallization of the unmet expectations of civil society and the international community.Footnote 40

IV. The Malaysian government and SUHAKAM

The Human Rights Commission of Malaysia Act 1999 was “rushed through Parliament in September 1999 with scant consultation with civil society organisations”.Footnote 41 In the opening words of his speech in the Dewan Rakyat Footnote 42 introducing the Human Rights Commission of Malaysia Bill, 1999, the then Foreign Minister, Datuk Seri Syed Hamid Bin Syed Jaafar Albar, said:

He emphasized that SUHAKAM was being created as a “channel for the people to forward their grievances about infringements and violations of human rights”Footnote 44 but cautioned that democracy is a “two way process” and that it was “crucial that human rights are seen in tandem with responsibility … and reason to ensure peace and security”.Footnote 45

It was in the interests of the government that SUHAKAM be perceived by civil society as legitimate, as civil society’s ally in engagement with government. At the same time, it is unlikely that Mahathir wanted to create an institution that would undermine his authority and challenge key government policies. The Human Rights Commission of Malaysia Act 1999 (the 1999 Act) was drafted to reflect this balance.

Under the 1999 Act, SUHAKAM has the following functions:

The 1999 Act established a body that was purely advisory and whose part-time commissioners (a maximum of twenty) held office for only two years.Footnote 47 Commissioners were appointed by the King on recommendation of the Prime Minister and there was no explicit requirement that Commissioners have knowledge of or expertise in human rights.Footnote 48 The mandate of SUHAKAM was restricted to “such fundamental liberties as are enshrined in Part II of the Federal Constitution of Malaysia”.Footnote 49 The Constitution guarantees a set of civil and political rights,Footnote 50 some of which (such as the right to free speech and expression, to peaceful assembly, and to form associations) may be subject to “such restrictions as the Parliament may deem necessary or expedient in the interest of the security of the Federation or any part thereto, friendly relations with other countries, public order or morality”.Footnote 51 Parliament had not been reticent about using these provisions to curtail constitutional liberties.

SUHAKAM was established on the premises of and under the auspices of the Department of Foreign Affairs,Footnote 52 an arrangement interpreted by some as a clear signal that SUHAKAM was intended to exist under the shadow of the government and was not to stand alone.Footnote 53 A Minister in the Prime Minister’s Department publicly said that SUHAKAM would not be given “teeth”.Footnote 54

Section 12(2) of the 1999 Act bars the Commission from inquiring into any complaint relating to an allegation of infringement of human rights which is before, or has been determined by, the courts.Footnote 55 This provision has had the effect of causing key investigations to be aborted, where particular incidents which may form a small part of an investigation or raise different issues have been brought before the courts. In 2007, SUHAKAM cancelled its public inquiry into alleged excessive police violence and the shooting of unarmed civilians during a ceramah (political gathering involving public speeches) in Batu Buruk, Terengganu. Two individuals, who had been shot at by police, were charged in court with the criminal offence of deterring police from pursuing their duties while being members of an unlawful assembly, causing injury to a policeman. Similarly, in August 2007, SUHAKAM cancelled its public inquiry into the alleged state-sanctioned burning of some twenty-eight homes in the East Malaysian state of Sabah after one of the victims in the incident filed a suit against the director of the Sabah Forestry Department. In its 2008 Report to the APF, the Malaysian Commission stated that:Footnote 56

The perception of human rights groups was that the Act was deliberately structured to ensure that the Commission was debilitated. One commentator writing at the time of the Commission’s establishment suggested that section 7(4) of the Act—which requires members to endeavour to reach decisions by consensus, failing which decisions are to be taken by a two-thirds majority of members present—had “the potential to ground the Commission in stalemate and indecision and make it a hapless bystander and spectator of violations of human rights”.Footnote 57

SUHAKAM’s Commissioners are appointed “from amongst prominent personalities including those from various religious and racial backgrounds”.Footnote 58 Commissioners hold office for a period of two years and are eligible for reappointment.Footnote 59

The term of office for SUHAKAM Commissioners originally provided for under the Act is markedly shorter than that of the Commissioners of the national institutions of Indonesia (five years, with possible reappointment for a further five years),Footnote 60 of the Philippines (seven years),Footnote 61 and of Thailand (six years).Footnote 62 While SUHAKAM Commissioners are not explicitly required by the legislation to have any expertise in human rights, the Indonesian legislation requires the appointment of Commissioners who have “experience” in the promotion and protection of individuals or groups whose human rights have been violated.Footnote 63 The Philippines legislation has no specific requirement that those appointed to the Commission have experience in human rights, but does require that a majority of those appointed to the Commission be from the Philippines Bar.Footnote 64 The legislation in Thailand requires the appointment of persons “having apparent knowledge or experiences in the protection of rights and liberties of the people, having regard also to the participation of men and women and representatives of private organizations in the field of human rights”.Footnote 65

The thirty-five Indonesian Commissioners are selected by the House of Representatives based on the recommendation of the National Human Rights Commission and validated by the President.Footnote 66 In the Philippines, the five Commissioners are appointed by the President, and in Thailand, eleven Commissioners are appointed by a Selection Committee consisting of a Supreme Court judge, the President of the Supreme Administrative Court, the Prosecutor-General, the Chairman of the Law Council, Rectors or representatives of higher education institutions which are juristic persons (five), representatives of human rights organizations (ten), representatives of political parties that have a member in the House of Representatives (five), and representatives of the public media (three).Footnote 67

The mandate and powers of SUHAKAM compare unfavourably with those of its ASEAN neighbours: the “Basic Rights” protected under Chapter II of the Indonesian legislation include a broad range of civil, political, social, and economic rights. The Indonesian Commission, Komnas Ham, has a mandate to promote human rights and also the power to investigate, issue subpoenas, and make recommendations. The Philippines Commission has a broad mandate, in the light of the state’s ratification of all the major treaties;Footnote 68 the Commission possesses considerable powers to investigate,Footnote 69 cite for contempt,Footnote 70 and grant immunity from prosecution.Footnote 71 The Thai Commission is empowered to protect all rights which are guaranteed under the Constitution of the Kingdom of Thailand, Thai laws, or treaties with which Thailand has an obligation to comply.Footnote 72 The Thai Commission is also able to file cases in court.

Malaysian NGOs have constantly highlighted the inadequacies of the 1999 Act: the short tenure and appointment process of Commissioners, their part-time status, and the Commission’s restricted mandate and limited powers. A comparison with the other ASEAN Commissions provides some support for the position of NGOs. Nonetheless, even with these structural limitations, SUHAKAM has achieved some notable successes in raising human rights awareness and investigating violations. That these successes have been achieved despite the structural challenges identified by NGOs, explains the clear sense of grievance exhibited by SUHAKAM CommissionersFootnote 73 at being threatened with demotion from SUHAKAM’s “A” status for legislative limitations beyond their power to change.

At the time it established SUHAKAM, the Malaysian government publicly portrayed the new body as the result of a “natural progression”Footnote 74 towards a human rights-centred state. The official version of SUHAKAM’s genesis commences with a reference to the 1993 attendance by a Malaysian delegation, led by Musa Hitam, to the World Conference on Human Rights in Vienna. At that conference, governments (including Malaysia) agreed that human rights are universal and indivisible, and recognized the importance of setting up NHRIs.Footnote 75 At the same time, Malaysia’s involvement in the world of international human rights was increasing: in 1993, Malaysia was elected by the UN Economic and Social Council to the UN Commission on Human Rights (UNCHR), where it served until 1995. In 1995, Musa Hitam was elected Chairman of the 52nd Session of the UNCHR. In 1995, Malaysia ratified CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) and the CRC (Committee on the Rights of the Child)—with reservations. In 1996, Tan Sri Razali Ismail was elected President of the 51st Session of the UN General Assembly and between 1996 and 1998 Malaysia served a second term as a member of the UNCHR. The Malaysian government portrayed SUHAKAM’s establishment merely as the next item on the government’s expanding curriculum vitae of human rights responsiveness, and asked civil society to withhold judgement until the fledgling Commission had commenced work.

V. SUHAKAM’S Commissioners

Much existing commentary on the work of NHRIs provides a critique of the institutional framework of individual commissions, noting how their mandates (broad or narrow) and powers (merely promotional or enforcement) influence their effectiveness.Footnote 77 Few academic commentators note, as Linda Reif does in passing, that “the strength of character and, occasionally, the courage needed to operate an effective national human rights institution should not be underestimated”.Footnote 78 Yet there is much evidence to suggest that the character and commitment of individual Commissioners is at least as relevant to the effectiveness of a Commission as its formal structure, powers, and mandate.Footnote 79 Given the constrained resources and high level of demand for the services of a NHRI, Commissioners must inevitably exercise discretion in deciding which issues to pursue, when to use tactics of persuasion, and when to overtly challenge governments on human rights issues. How independent, resourceful, determined, and well connected a Commissioner is, will determine the success of his or her endeavours. From this, one could argue that the ICC ought to scrutinize the selection process of Commissioners. However, there is no guarantee that a selection process, no matter how transparent and inclusive of different societal interests it may be, will secure the appointment of courageous and creative Commissioners.

Musa Hitam, “the original idealist who conceived the idea of SUHAKAM”,Footnote 80 is a key figure in the genesis of SUHAKAM. Musa Hitam’s character, his standing in Malaysian society, and the personal influence he carried with Mahathir, have all been offered as explanations for the establishment of a national human rights commission. SUHAKAM Commissioner Simon Sipaun’s view is typical of many: “Tun Musa Hitam was a very influential person in the country and he was very pro human rights and I think he had a strong influence on the government to have a national human rights agenda.”Footnote 81

There can be little dispute that Musa Hitam used his influence to challenge the Mahathir regime’s intransigent attitude to human rights, ultimately achieving the establishment of a national human rights commission. The commission was not the result of Mahathir’s capitulation to Malaysian civil society, which had been calling upon the government to set up a commission for some years. If part of the explanation for SUHAKAM’s genesis lies in Musa Hitam’s personal commitment to human rights and his tenacity in convincing Mahathir’s government that a national commission would serve Malaysia well, then the environment that bred these attitudes in Musa Hitam deserves attention.

Musa Hitam served as Mahathir’s deputy from 1981 to 1986, resigning over what he called “irreconcilable differences” with Mahathir. For the next two years he served as Malaysia’s Special Ambassador to the United Nations. During his time at the United Nations, Malaysia’s international image was poor: “every time I went out of the United Nations building there was some demonstration or other against us.”Footnote 82 It was during his period as UN Ambassador that Musa Hitam became aware of the various UN institutions such as the Human Rights Commission and ECOSOC (Economic and Social Council). In Musa Hitam’s words:

In 1994, Musa Hitam suggested to Mahathir that Malaysia should establish its own national human rights commission.Footnote 84 In 1995, Musa Hitam was elected chairman of the 52nd Session of the United Nations Commission on Human Rights. Musa Hitam reported that the Prime Minister was “not immediately responsive to the idea” of establishing a commission, but after persistently “building up the case for it”,Footnote 85 Musa Hitam convinced the government “that the time was right for Malaysia to establish its own independent Human Rights Commission”.Footnote 86 In 2000, Mahathir appointed Musa Hitam as SUHAKAM’s first Chairman of Commissioners. During the first few years of its existence under his leadership, SUHAKAM confounded its critics.Footnote 87

S. Arutchelvan, Secretary-General of the Malaysian Socialist Party, recalls the first time that he met with SUHAKAM’s first chairperson, Musa Hitam:

SUHAKAM’s first set of Commissioners, selected by Mahathir from a range of academic and political backgrounds, won the respect of civil society for their first report, highly critical of the police, into the Kesas Highway incident. SUHAKAM reported that the police response to the peaceful protest of a hundred thousand people on the Kesas Highway had been brutal and disproportionate.Footnote 89 SUHAKAM’s view was not accepted by the government. Datuk Seri Utama Dr Rais Yatim, Minister in the Prime Minister’s Department, told Parliament, “the action taken by the police is correct … SUHAKAM’s report on the incident does not portray the real situation, and is biased”.Footnote 90

In 2002, the terms of three Commissioners (former Chief Judge of Malaya, Tan Sri Anuar Zainal Abidin, former law lecturer Mehrun Siraj, and Malaysian Nature Society President Dr Salleh Mohd Noor), were not extended. Commissioners Abidin and Siraj had led the probe into police brutality in the Kesas Highway incident. Media reports critical of the decision not to reappoint the Commissioners stated that:

Similarly, in 2006 the Malaysian government failed to reappoint Hamdan Adnan, head of the investigations and complaints committee, a particularly forthright and effective Commissioner.

In its early years, SUHAKAM Commissioners made recommendations in relation to repressive laws such as the Internal Security Act, and made strong statements supporting the right to freedom of speech and freedom of assembly. They advocated Malaysia’s ratification of international human rights covenants, particularly the ICCPR (International Covenant on Civil and Political Rights) and the ICESCR (International Covenant on Economic, Social, and Cultural Rights). Highly sensitive issues such as religious freedom in the supposedly secular Malaysian state and the growing problem of racially based violence were, however, largely ignored. SUHAKAM was strongly criticized for not holding an inquiry into the racial attacks at Kampong Medan near Kuala Lumpur in 2001.Footnote 92 In 2002, NGOs also observed that since SUHAKAM’s formation, the number of people detained under the Internal Security Act had climbed steadily and, by the end of the term of appointment of SUHAKAM’s first Commissioners, the number had doubled to about a hundred.Footnote 93 2001 was not an auspicious year to be operating a human rights commission: Musa Hitam disappointed many when he claimed, in the wake of the September 11 attacks on the United States, that “human rights must take a back seat” to winning the war on terror.Footnote 94

Perhaps as a reaction to the appointment of liberal Commissioners at the establishment of SUHAKAM, the Malaysian government appointed retired Attorney General Abu Talib Othman its next Chairman in April 2002. As Attorney General under Mahathir, Abu Talib had played a key role in the 1988 ousting of the head of the Malaysian judiciary,Footnote 95 which occurred just prior to the hearing of a case that was politically sensitive for the ruling party. Abu Talib also executed “repressive government measures such as Operation Lalang and the preventive detention of opposition leaders”.Footnote 96 After his period as Attorney General, Abu Talib was brought back as a special investigator to conduct the inquiry into the assault on deputy premier Anwar Ibrahim, providing a report considered by many to be favourable to the government.Footnote 97 Five new Commissioners, “virtually unknown in human rights circles in Malaysia”,Footnote 98 were also appointed.

In response to Abu Talib’s appointment, civil society called for a more transparent selection process for Commissioners and that the selection criteria explicitly include human rights expertise. Thirty-two NGOs disengaged from interaction with SUHAKAM for one hundred days “to protest Abu Talib’s appointment and the scant respect the government showed for SUHAKAM recommendations”.Footnote 99 A spokesman for one of Malaysia’s leading human rights organizations, Aliran, stated at the time that “it is the perception of civil society that the Commissioners who have been dropped are among those who have actually discharged their statutory duties in the promotion and protection of human rights, without fear or favour”.Footnote 100

Abu Talib proved to be a more independent and critical Commissioner than many NGOs had anticipated. As Attorney General in 1991, Abu Talib had drafted ouster clauses precluding judicial review over preventive detention cases—necessary, he claimed, in the context of an irresponsible press and the grave security concerns existing at the time.Footnote 101 As Human Rights Commissioner in 2006, Abu Talib called for a repeal of these same ouster clauses, because “they were against human rights”.Footnote 102

The Paris Principles are underpinned by the twin concepts of independence and effectiveness. The forthright criticism of SUHAKAM that has emanated from NGOs has largely focused on SUHAKAM’s ineffectiveness and not on any lack of independence from government exhibited by its Commissioners.Footnote 103 SUHAKAM’s reports regularly note human rights abuses committed by the state or its agents and regularly exhort the government to fulfil its international human rights obligations and to ratify the major human rights treaties.Footnote 104 NGO criticism of SUHAKAM tends to focus on SUHAKAM’s failure to effect change. This failure is sometimes attributed to factors such as the statutory requirement of part-time rather than full-time Commissioners which, NGOs argue, leads to the appointment of men and women unable to discharge their work efficiently. Human rights advocate Ivy Josiah states:

NGOs attribute the lack of outcomes to the fact that Commissioners work only part-time. Leading human rights organization SUARAM (Suara Rakyat Malaysia “Voice of the Malaysian People”) stated that one of the Commission’s major failings was its slow response to human rights violations:

Some of SUHAKAM’s Commissioners agree that they would be better able to serve SUHAKAM if they were employed on a full-time basis. Commissioner Denison Jayasooria states that:

Commissioner Simon Sipaun agrees: “I think if you want commitment it should be full-time. Otherwise you cannot focus on your work. And there may be a basis for people to complain.”Footnote 108 However, one SUHAKAM Commissioner expresses a different view:

But whether SUHAKAM is able to effect change depends less on the part-time or full-time status of its Commissioners and more on the responsiveness of the Malaysian government to SUHAKAM’s reports. Until 2006, the Malaysian government had not issued a formal response to any of SUHAKAM’s annual reports and had not debated the reports in Parliament. This fact has clearly frustrated Commissioners as well as NGOs:

Commissioner Simon Sipaun considers the government’s recent preparedness to respond to SUHAKAM’s annual reports as one result of a larger and more powerful opposition, elected to the Parliament in March 2008:

Perspectives such as these show the extent to which the effectiveness of a NHRI depends on the efficient functioning of other democratic institutions, such as an impartial judiciary, an effective Parliament and credible opposition party, and a free media. NHRIs, even if granted the power to redress individual human rights grievances in judicial or quasi-judicial proceedings, rely on the techniques of soft power to effect change to government policy—on publicity, public awareness, high-level personal influence, and garnering political support from opposition parties. SUHAKAM was born into an authoritarian state; at various stages of its life SUHAKAM has seen the arrest of media representatives who criticized the governmentFootnote 113 and the imprisonment of opposition politicians.Footnote 114 Within these constraints, SUHAKAM has created new dynamics between civil society and the Malaysian government, as NGOs attempt to hold the government to its promise of reform and respect for human rights.

VI. SUHAKAM and civil society

In 1999, the Special Adviser on National Institutions, Regional Arrangements and Preventive Strategies to the United Nations High Commissioner, Brian Burdekin, wrote in relation to plans to establish a Malaysian National Human Rights Commission (NHRC):Footnote 115

Malaysians heard of the government’s proposal to set up a National Human Rights Commission via a press release issued on 25 April 1999 by the Minister of Foreign Affairs, Syed Hamid Albar. The Minister announced that a Bill, setting out the terms of reference and powers of the Commission, would be tabled in the July 1999 sitting of Parliament. The contents of the draft Bill would not be made public prior to its introduction into Parliament.Footnote 116

While Malaysian civil society “welcomed in principle”Footnote 117 the establishment of SUHAKAM, it remained “sceptical and suspicious”Footnote 118 of the Malaysian government’s motives in establishing the Commission. There were “initial fears that SUHAKAM would be nothing more than window dressing to restore the credibility of the government while it dealt with Anwar [Ibrahim]”.Footnote 119 Human rights organizations questioned whether an organization with SUHAKAM’s limited mandate, restricted jurisdiction,Footnote 120 and lack of financial independence, could operate effectively. The concern was that SUHAKAM had been hobbled at birth by a government concerned to deflect domestic and international criticism from its increasingly repressive policies.Footnote 121

One of Malaysia’s leading human rights NGOs, HAKAM,Footnote 122 openly questioned the government’s motives in establishing SUHAKAM. HAKAM’s spokesman at the time, Lim Kit Siang, noted that the government’s Human Rights Commission Bill did not comply with the Paris PrinciplesFootnote 123 requirement of a broad mandate to protect and promote the human rights recognized by international human rights instruments and that the government had not complied with the Paris Principles requirement that civil society be involved in consultation about the establishment of human rights commissions. He also noted that the two-year tenure of Commissioners was “not conducive to conferring independence of office” and that a requirement that commissioners be “prominent personalities” was unlikely to encourage the appointment of those with a commitment to human rights, and more likely to encourage “sinecures for political hacks and has-beens”.Footnote 124 Lim called on the government to refer the Human Rights Commission Bill to a Select Committee to allow for the full and widest public consultation “to prove that the government is not involved in a PR exercise but is genuinely concerned in establishing a Human Rights Commission which can genuinely promote and protect human rights”.Footnote 125

NGOs demanded that the government “take immediate measures” to strengthen the independence and effectiveness of SUHAKAM by requiring SUHAKAM to report directly to Parliament (rather than to the Prime Minister’s Department); establishing an independent search committee to appoint Commissioners; setting credibility, independence, and competence in the field of human rights as key criteria for Commissioner selection; and introducing a longer, five-year tenure for Commissioners, with no reappointments.Footnote 126

However, much of civil society disaffection with SUHAKAM stems from the fact that the Commission’s reports are not debated in Parliament and its recommendations are not implemented by the government. In its statement for the Universal Periodic Review (UPR) on Malaysia in February 2009, SUHAKAM acknowledged the government’s lack of implementation of its reports.Footnote 127 SUHAKAM’s former chairman, Abu Talib Othman, has stated:

Civil society also complained of SUHAKAM’s lack of engagement with NGOs and human rights organizations. According to a 2007 report by ERA Consumer, Malaysian NGOs have initiated annual consultations with SUHAKAM each year since 2002, but the SUHAKAM chairman had never attended these sessions and fewer than ten percent of the Commissioners had attended.Footnote 129

In 2002, a coalition of NGOs disengaged from SUHAKAM for a hundred days to protest against the appointment of Abu Talib and the non-renewal for a second term of two high-profile Commissioners who were seen as effective advocates of human rights. In June 2006, NGO representatives walked out after five minutes of a meeting with SUHAKAM to push for a public inquiry into the “Bloody Sunday” incident of March 2006, where crowds protesting against a sharp fuel price hike were violently dispersed by police. NGOs also threatened to boycott SUHAKAM’s 2005 Malaysian Human Rights Day Conference at which SUHAKAM had invited Mahathir to give the keynote address. NGOs were outraged that the leader who had authorized the 1987 Operation Lalang affair, the 1988 assault on the judiciary, the 1988 displacement of ten thousand indigenous people from Bakun, and the incidents involving Anwar Ibrahim, would be invited by the nation’s Human Rights Commission to address the nation on human rights. Mahathir’s response was “I have been invited. That’s my right. Are they [NGOs] denying me my human right?” Mahathir added that the fact that the NGOs could say this proved that the country had defended human rights.Footnote 130

VII. SUHAKAM and the Internal Security Act 1960

There are many detailed accounts of the achievements and limitations of SUHAKAM in the course of its ten-year history.Footnote 131 It is not the object of this article to repeat that work. What interests us is the response of civil society and NGOs to SUHAKAM’s work and how this response fed into the ICC’s finding that SUHAKAM ought to face demotion of its status. The history of SUHAKAM’s efforts to convince the government to repeal the 1960 Internal Security Act (ISA), the government’s (lack of) response to these efforts, and civil society’s growing frustration with SUHAKAM, illustrates the dynamics of engagement between NGOs and SUHAKAM.

Article 149 of the Constitution of Malaysia sets out the circumstances in which the Yang di-Pertuan AgongFootnote 132 may pass legislation that is inconsistent with, or which violates, the rights protected under the Constitution. These circumstances include: the threat, or fear, of organized violence against persons or property by “any substantial body of persons”;Footnote 133 any action taken “to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation”;Footnote 134 any action taken “to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence”;Footnote 135 and any action taken “which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof”.Footnote 136

The ISA “slipped into force”Footnote 137 during the last days of the 1948 state of emergency.Footnote 138 The ISA was proclaimed necessary to combat subversion and communist terrorism.Footnote 139 It allowed for detention for police investigation for sixty days and then by order of the Minister for two years, renewable for another two years. The decision to detain is not judicially reviewable.Footnote 140

In 2002, a delegation from Fordham Law School conducted a study of the operation of the ISA after September 11 and reported the following:

In its September 2008 submission to the UN under the UPR procedure, SUARAM detailed how the ISA was “repeatedly deployed to stifle opposition political movements. More specifically, political leaders who challenge the ruling coalition’s sway within particular ethnic constituencies have most often been targets of ISA detentions.”Footnote 142 The ISA was used in the notorious Operation Lalang in 1987, when government forces detained more than a hundred “dissenting” opposition leaders, trade union leaders, and representatives of educational bodies, NGOs, and civil society.Footnote 143 The ISA was used to arrest Anwar Ibrahim in 1989, before he was eventually charged with sodomy and corruption. In 2001, the ISA was used to detain ten of Anwar Ibrahim’s political associates and supporters prior to a demonstration planned to mark the second anniversary of his sentencing. The Inspector-General of Police, Tan Sri Norian Mai, claimed that the detainees were members of a “secret cell” that sought to violently overthrow the government.Footnote 144 In the wake of September 11, the Malaysian government used the threat of terrorism as the justification for the continued existence and use of the ISA. Mahathir “publicly boasted of Malaysia’s prescience in using the ISA, describing the USA Patriot Act as an example of American reliance on Malaysian precedent”.Footnote 145

In 2003, SUHAKAM’s Law Reform Working Group, chaired by respected former Court of Appeal judge Dato K.C. Vohrah, released its Review of the Internal Security Act 1960 (the Review). The Review called for the repeal of the ISA and for a new law to be enacted that would redress the situation that was presently “disproportionately weighted in favour of national security”.Footnote 146 The Commission’s view was that “[h]istory has shown that law and practice in relation to the ISA have adversely affected the status of human rights in Malaysia”.Footnote 147 Vohrah wrote that:

In its subsequent reports, SUHAKAM reiterated its recommendation for the repeal of the ISA, stating that detention without trial was a denial of the individual’s rights to personal liberty, the right to a fair trial, and the right to be presumed innocent until proven guilty.Footnote 149

SUHAKAM’s recommendations to the government were specific: the ISA should be repealed and replaced by a consolidated national security law that “conforms with international human rights principles”.Footnote 150 Under the new law, detention without trial should not exist, apart from a maximum 29-day detention period for the purposes of police investigation, after which the detainee is charged or released. SUHAKAM recommended that until the new legislation was enacted, and that there should be reforms of the ISA and its regulations.Footnote 151

The Malaysian government did not respond to a request in 2005 from the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, for information related to ISA detentions.Footnote 152 SUHAKAM’s 2006 Annual Report reiterated the Commission’s recommendations for the repeal of the ISA. The 2006 Report argued that the enactment of a new law which contained specific offences protecting national security interests and respecting human rights would enable the state to satisfy its “responsibility … to take measures to ensure the security and well-being of citizens”.Footnote 153

Leading human rights organisations such as SUARAM and the Abolish ISA Movement (Gerakan Mansuhkan ISA—GMI) have made the abolition of the ISA a pillar of their protest movement. After Abdullah bin Haji Ahmad Badawi took over from Mahathir as Prime Minister in November 2002, NGOs intensified their calls for the abolition of the ISA and all laws allowing detention without trial. NGOs commended SUHAKAM’s 2003 Report on the ISA as

SUHAKAM’s Report was not debated in Parliament and there was no repeal or amendment of any of the legislation permitting detention without trial. Foreign Minister Datuk Seri Syed Hamid Albar and Minister for Domestic Trade and Consumer Affairs Tan Sri Muhyiddin Mohd Yassin dismissed SUHAKAM’s 2003 Report on the ISA as “irrelevant”.Footnote 155 In 2008, SUHAKAM’s Vice President, Tan Sri Simon Sipaun, stated:

In 2008, journalists and opposition politicians were still being arrested under the ISA and held without charge.Footnote 157

For Malaysian civil society organizations and NGOs, the existence and use of the ISA is the litmus test for civil liberties in Malaysia. When asked to identify the principal shortcomings of SUHAKAM, NGOs refer first to the Commission’s failure to effect change to the status of the ISA.Footnote 158 But NGOs also find it difficult to state what else SUHAKAM could have done, within its powers, to effect the required changes. SUHAKAM is established as an advisory body with no power to compel the government to amend or repeal legislation which, in the Commission’s view, contravenes human rights. In relation to the ISA, SUHAKAM’s statutory role is to monitor the ISA’s implementation, to educate the executive and civil society about its impact, to report on human rights violations which occur as a result of executive actions under the ISA, and to recommend to Parliament amendments or repeal of the ISA if its use results in the diminution of internationally recognized human rights which are not inconsistent with the Malaysian Constitution.

It could be argued that since 2003, when Vohrah published his comprehensive review of the ISA, SUHAKAM has ably and independently fulfilled its function. Its inability to effect change in relation to the ISA is the result of legislative inertia and not of a lack of commitment on the Commission’s part. SUHAKAM’s tactics in promoting compliance with human rights norms are restricted to enlisting the agents of publicity and the pressure of public opinion; tactics for which there is no guarantee of success in an “authoritarian state with a relatively tame judiciary and controlled media”.Footnote 159 By 2008, NGOs had realized that SUHAKAM was not “the mighty champion that was going to sweep down from the mountains and resolve their problems for them” but “merely one cog in the wheel of human rights activism”.Footnote 160

Nonetheless, Malaysian NGOs held the view that SUHAKAM was a cog that could be made to work more effectively. NGOs continued to urge the government to amend the 1999 Act to ensure that SUHAKAM had structural autonomy from government and that its Commissioners were full-time, appointed for five years without reappointment, qualified in the field of human rights, and selected after full consultation with civil society. In addition, they continued to advocate for a broader Commission mandate and that SUHAKAM’s reports be debated in Parliament.Footnote 161

SUHAKAM’s 2002 Report identified the Commission’s own shortcomings and suggested legislative amendments along the lines suggested by NGOs. In its 2008 Report, prepared for the UPR of Malaysia by the UN Human Rights Council, SUHAKAM stated that “from the outset, Commissioners themselves as well as civil society had found the [Malaysian Human Rights Commission] Act to be too restrictive and behind those of leading best practices”.Footnote 162

The question was how to persuade the Malaysian government to amend the legislation establishing SUHAKAM and to strengthen an institution that had spent much of its existence challenging the government.

VIII. Suhakam and the International Co-ordinating Committee

In 2002, the Council of the Asia Pacific Forum of National Human Rights Institutions determined that SUHAKAM was fully compliant with the Paris Principles and admitted it as a full member of the Forum.Footnote 163 In July 2008, SUHAKAM hosted the 13th Annual APF Meeting,Footnote 164 which was attended by Commissioners and senior staff from the APF’s seventeen members,Footnote 165 representatives of governments of the region,Footnote 166 UN representatives,Footnote 167 and members of domestic and international non-governmental organizations.Footnote 168

Something of a pall hung over the meeting. In April 2008, the ICC had put the hosts on notice that they were in danger of losing their “A” status accreditation. It was unclear what effect a downgrading of status by the ICC would have on SUHAKAM’s membership of the APF.Footnote 169 Malaysian NGOs used the occasion of the APF meeting to embarrass the government about its poor human rights record and the perceived limitations of SUHAKAM. Indeed, two of Malaysia’s most prominent civil society organizations, ERA Consumer and SUARAM, had themselves submitted a report to the ICC outlining their perception of SUHAKAM’s non-compliance with the Paris Principles. One member of a Malaysian NGO stated that:

The decision of ERA Consumer and SUARAM to submit a report to the ICC was unprecedented for NGOs of the Asia Pacific. The decision appears to have been taken as part of a strategy of NGO engagement with international institutions promoted by the Asian Network of NGOs on National Institutions (ANNI). In 2006, ANNI was established as an umbrella organization of NGOs, with the purpose of providing a forum through which NGOs involved with the work of national commissions could share expertise, provide support, structure campaigns, and act in concert to achieve regional goals. ANNI has as its members NGOs from each country in the region with a NHRI.Footnote 171 In its initialFootnote 172 and subsequent reports, ANNI has consistently acknowledged the potential power of NHRIs as “the practical link between international standards and their concrete application, the bridge between the ideal and its implementation”,Footnote 173 but has also questioned the independence and effectiveness of individual NHRIs in Asia. SUHAKAM is one such institution. In its 2008 review, ANNI describes SUHAKAM’s performance as “disappointing as in previous years, if not even more dismal”.Footnote 174 However, ANNI’s 2008 Report recognized that SUHAKAM was constrained by a narrow mandate and limited powers of enforcement. The 2008 Report also condemned the intransigence of the Malaysian government, which had failed to empower SUHAKAM or respond to its reports or recommendations. It was during an ANNI meeting that Malaysian NGOs raised the idea of utilizing the ICC accreditation procedure as a means of procuring legislative change. John Liu of SUARAM stated that:

The Malaysian NGOs’ report about SUHAKAM’s non-compliance with the Paris Principles was sent to the ICC without first being sent to SUHAKAM. The ICC Sub-Committee on Accreditation now appears to have rectified these deficiencies in procedural fairness: the ICC Sub-Committee’s November 2008 Report and Recommendations (section 2.5) provides that “The Sub-Committee agreed, commencing with its next session, to consider only that information from civil society that is received by the National Institutions Unit at least four (4) months prior to the next session of the Sub-Committee”.Footnote 176

SUHAKAM Commissioners objected to facing downgrading on the basis of an NGO report which they had not seen. During the APF’s Annual Meeting in Kuala Lumpur, SUHAKAM’s chairman met the ICC chairperson and OHCHR representatives to “express disappointment that the reason for proposing that SUHAKAM be re-graded to ‘B’ is based solely on the report and criticism of this one civil society group” and to ask of the ICC: “are you acting as a rubber stamp of the civil society, or are you looking at us objectively?”Footnote 177

Commissioner Simon Sipaun describes the NGO SUARAM as “the self-appointed auditor of SUHAKAM”.Footnote 178 Sipaun’s response to the NGO’s direct appeal to the ICC on SUHAKAM’s shortcomings captures the sense of umbrage felt by many Commissioners:

SUHAKAM’s Commissioners also objected to demotion per se, arguing that at the time of SUHAKAM’s establishment in 1999, the ICC had seen fit to accredit SUHAKAM with “A” status; the only thing that had changed by 2008 was that SUHAKAM had a list of commendable reports to its name and the hard work of many dedicated Commissioners. SUHAKAM’s Commissioners also took the view that NGOs were “targeting the government but pointing the barrel of the gun at SUHAKAM”.Footnote 180 It was beyond SUHAKAM’s power to effect the changes demanded by civil society; that power rested with Parliament:

SUHAKAM’s Commissioners were not convinced that the government set so much store by the international prestige of possessing an “A” status NHRI that the threat of demotion would trigger an amendment to the legislation. Commissioner Simon Sipaun’s view was that “as to what extent this downgrading will affect them, knowing them, I don’t think they will do much. I don’t think they will lose sleep over it.”Footnote 182

It appears that Sipaun was mistaken. On 11 February 2009, Malaysia was reviewed in the UN Human Rights Council’s UPR. In an opening statement on behalf of the Malaysian government, Tan Sri Rastan Mohd Isa, noting the ICC’s contention that SUHAKAM was not in full compliance with the Paris Principles and that the Commission faced possible demotion, stated:

This was not mere rhetoric. The SCA gave SUHAKAM until 26 March 2009 to provide written evidence demonstrating the institution’s continued conformity with the Paris Principles. On 24 March 2009, the government tabled the Human Rights Commission of Malaysia (Amendment) Bill 2009, for a first reading in Parliament. On 25 March 2009, the Bill was passed, amidst protests from the opposition that the Bill had been tabled and passed in unseemly haste (and in contravention of the Standing Orders of the House). No notice of the Bill had been given and no consultation preceded its passage. Opposition MP Lim Kit Siang was temporarily suspended from Parliament when the “vigorous debate” about the Bill’s hasty passage descended into “an exchange of insults” between government and opposition MPs.Footnote 184

The Explanatory Memorandum accompanying the Bill stated that the legislation was intended to make the appointment process of SUHAKAM Commissioners “more transparent”.Footnote 185 Section 5(2) of the Amendment Act provided that SUHAKAM Commissioners would be appointed by the Yang di-Pertuan Agong on the recommendation of the Prime Minister, following consultation with a Selection Committee comprising the government’s Chief Secretary, the Chairperson of SUHAKAM, and three “eminent persons” appointed by the Prime Minister.Footnote 186 Section 11(A)(6) of the Amendment Act provided that the views or recommendations of the Selection Committee shall not be binding on the Prime Minister.

The Amendment Act also changed the criteria for the selection of Commissioners. Where the original Act provided that Commissioners be appointed from “amongst prominent personalities, including those from various religious and racial backgrounds”,Footnote 187 the Amendment Act provided that “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”.Footnote 188 The period of tenure for Commissioners was extended in the Amendment Act from two years with possible reappointment for a further two years, to three years with possible reappointment for a further three years.Footnote 189 There is also a reference in the Amendment Act to “key performance indicators”, which may be devised by the Prime Minister to assess the performance of members of the Commission and which may be taken into consideration in relation to the reappointmentFootnote 190 and the removalFootnote 191 of Commissioners.

The day after the Amendment Act was passed, ANNI sent a letter to the SCA criticizing the “hasty manner” in which the amendments had been passed which “clearly illustrated the government’s will to bulldoze this bill through Parliament in time for the (ICC) review of SUHAKAM and … avoid a debate over the amendments”.Footnote 192

ANNI’s letter stated that the amendments were “superficial”, that they failed to ensure pluralism in the appointment process as required by the Paris Principles, and gave the Prime Minister absolute discretion over the appointment of new Commission members. ANNI argued that if the SCA were to maintain SUHAKAM’s “A” status on the basis of the amendments, it would “set a precedent that would negatively affect future accreditation reviews of other NHRIs”, and undermine the possibility of securing “more substantial amendments that would truly make SUHAKAM an independent, effective and accountable NHRI”.Footnote 193

In support of ANNI’s view, in April 2009, the SCA informed SUHAKAM that the government’s legislative amendments were inadequate. But again, the SCA deferred its decision on SUHAKAM’s reaccreditation, providing a twenty-eight day window for the Malaysian government to consider further legislative amendments.

The Malaysian government took this opportunity. On 8 May 2009, de facto Law Minister Datuk Seri Nazri Abdullah Aziz announced that the government would again amend the 1999 Act in a bid to ensure SUHAKAM’s compliance with the Paris Principles.Footnote 194 The further amendments would involve two substantial changes. First, the clause which provided that the Prime Minister was not bound by the opinions, views, or recommendations of the Selection Committee would be deleted. Second, the clause referring to the composition of the Selection Committee would be amended from “three eminent persons” to “three members of civil societies of human rights”. These changes were passed by the Malaysian Parliament on 2 July 2009.Footnote 195 In November 2009, the SCA delivered its recommendation that SUHAKAM’s “A” status be maintained, welcoming the passage of the two amendment Acts of 2009 and expressing its appreciation for the constructive approach taken by SUHAKAM in pursuing both sets of amendments with the government.Footnote 196