Suhakam is Malaysia’s national human rights institution, and it must always be independent and be seen to be independent, especially from the government.
But when the human rights commission decided to not inquire and decide on a complaint lodged with it alleging, amongst others, racial discrimination and abuse of power by a fellow commissioner and later referred it to the legal affairs division of the Prime Minister’s Department, this affected the perception of its independence – which may also well be considered a failure of duties of Suhakam commissioners.
After being appointed by the King, like judges, Suhakam commissioners must be independent and committed to the protection and promotion of human rights.
By asking a division in the Prime Minister’s Department to deal with the inquiry of a complaint submitted to Suhakam, it may give the wrong impression that the commission is under a division in the Prime Minister’s Department. With eight commissioners, the inquiry against even a fellow commissioner should still be done by Suhakam.
As such, all Suhakam commissioners – or those involved in the decision-making in not carrying out the inquiry and referring the complaint to the prime minister – ought to resign, or even be removed to restore the credibility and independence of the commission.
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Now, even the Human Rights Commission Of Malaysia Act 1999’s grounds for disqualification or removal as stated in Section 10, amongst others, says that if any commissioner had (ii) … misbehaved or has conducted himself in such a manner as to bring disrepute to the Commission; or (iii) … in conflict with his duties as a member of the Commission.
In this case, firstly, they failed in their duty to duly investigate or do a public inquiry and decide on a complaint against a fellow Suhakam commissioner, and secondly, they elected to refer it to the Prime Minister’s Department asking for the “allegations to be looked into by an independent body”. This is totally absurd.
Malaysians Against Death Penalty and Torture (Madpet) is appalled at how the complaint to Suhakam regarding the serious allegation about human rights violations against the now immediate past Suhakam chairman was dealt with.
The complaint
In brief, in March, a complaint was lodged with Suhakam by several complainants against the then Suhakam chairman Prof Rahmat Mohamad, alleging human rights violations like racial discrimination and abuse of power.
Racial discrimination is a serious human rights violation, that is also specifically mentioned in the UN General Assembly’s Paris Principles (“principles relating to the status of national human rights institutions”) that sets out the minimum standards that such institutions must meet to be considered credible and independent and to operate effectively.
Then on 28 April, the chairman filed a lawsuit against one of the complainants, a senior Suhakam staff, alleging, among others, defamation. This itself is conduct unbecoming of a Suhakam commissioner.
Did a Suhakam commissioner file the lawsuit in court to prevent Suhakam from inquiring into the complaint?
Section 12(2) of the Human Rights Commission Of Malaysia Act states that “The Commission shall not inquire into any complaint relating to any allegation of the infringement of human rights which- (a) is the subject matter of any proceedings pending in any court, including any appeals; or (b) has been finally determined by any court.”
Can we then say that this Suhakam commissioner had “misbehaved or has conducted himself in such a manner as to bring disrepute to the Commission; or (iii) has acted in contravention of this Act and in conflict with his duties as a member of the Commission” – which is also grounds for disqualification and removal as a Suhakam commissioner?
Then, on 16 June, Suhakam came out saying the chairman would withdraw the suit. Has the suit been withdrawn yet? Should it not have been the chairman himself that made this statement, and not Suhakam? In any event, there is no news about any withdrawal of the suit in court, and if he did, the withdrawal should be a withdrawal with no liberty to file afresh.
If the court action has already been withdrawn, then Suhakam is now free inquire and decide on the complaint against its former chairman Rahmat. Suhakam must therefore retract its decision to refer to Prime Minister’s Department and carry out the inquiry itself. Even if the chairman has resigned, an inquiry and decision must still be carried out and decided by Suhakam.
Then, on 24 June, it was reported:
The Human Rights Commission of Malaysia (SUHAKAM) says it will refer matters related to allegations against its chairman to the legal affairs division of the Prime Minister’s Department… the commission said it was imperative for such allegations to be looked into by an independent body…
In any event, there is no news about any withdrawal of the suit in court, and if he did, the withdrawal should be a withdrawal with no liberty to file afresh.
Wrong move
It seems that no independent inquiry was done, and the complaint is yet to be dealt with. Was there a human rights violation or not remains an unanswered question.
What happened was the minister appointed the sitting Suhakam commissioner to another big position, possibly one that comes with remuneration, on 23 August, and Rahmat resigned on 31 August.
The [legal affairs] division said Rahmat is now the Asian International Arbitration Centre (AIAC) Advisory Board chairman for 2023-2025 term, following an appointment made by the Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said on Aug 23.
Madpet believes it is wrong for the minister or government to appoint a sitting Suhakam commissioner to another position, possibly one with allowances, remuneration or powers. It is different if the appointment comes long after he ceases to be a commissioner, but it not the case here.
No sitting Suhakam commissioners must be appointed to other positions by the government, as this affects the independence of Suhakam and its commissioner. Noting that the state or state-linked entities or persons may often be the alleged violators of human rights, such ‘appointments’ can be perceived as ‘bribes’ and may affect the perception of the independence of the commissioners and Suhakam itself.
Suhakam’s independence and perception of independence from government is of paramount importance, as reasonably Suhakam will have to deal with all kinds of complaints of violations of human rights, where in many cases, the alleged perpetrator may be the government, government departments or agencies or officers, government-owned or linked companies, ministers and even the PM.
Noting what has happened, Madpet calls for the immediate resignation of all Suhakam commissioners, or alternatively that they be removed as Suhakam commissioners.
Madpet notes that no individual commissioner has to date come out publicly and stated his or her objection to the decision for Suhakam not to inquire into the complaint and to the decision to ask the legal affairs division of the Prime Minister’s Department to deal with it through an independent inquiry. No commissioner has also come out publicly to state that he or she was not part of the decision-making process.
Madpet calls for the minister in the Prime Minister’s Department responsible for law and institutional reform, Azalina Othman Said, to apologise and explain her actions that have undermined the independence of a Suhakam commissioner, and to immediately revoke the 23 August appointment of the sitting Suhakam commissioner as the Asian International Arbitration Centre’s advisory board chairman.
This is important to affirm the Malaysian government’s acknowledgement that Suhakam is a truly an independent national human rights institution, which the people can rely on.
As the former Suhakam chairman’s case has allegedly been withdrawn, Madpet calls for Suhakam to conduct an immediate investigation or inquiry and make a decision on the complaint made against the then Suhakam chairman. A resignation does not erase the fact that there was a complaint about a human rights violation. A human rights complaint to Suhakam must always be investigated and decided by the commission.
Not dealing with a complaint or petition to Suhakam is bad, and it may affect people’s perception about the commission’s independence and commitment to human rights. We do not want to give the impression that certain complaints of human rights violations – especially when the alleged human rights violators are Suhakam commissioners or staff or government or government-linked entities or persons – may simply not be independently investigated or inquired into and decided by Suhakam.
Suhakam is and never should be or be seen as a defender of government actions and other omissions that are rights violations. Neither is Suhakam the government’s representative or apologist. Suhakam is a national human rights institution that defends and promotes human rights and that is also brave enough to speak out even against the government, the PM, a minister and government-linked entities or persons or anyone when their actions violate human rights.
Madpet calls on Suhakam and its commissioners to always ensure their independence and perception of independence, and to always defend and promote human rights without fear or favour.
Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)
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