Face to face with Suhakam chief: Law and humanity

ABOUT a month into his appointment as the new Human Rights Commission of Malaysia (Suhakam) chairman, retired Court of Appeal judge Datuk Seri Mohd Hishamudin Yunus made a bold appeal.

He hopes that, under his three-year tenure, the Malaysian government will accede to key international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination (Icerd) and the 1951 Refugee Convention.

The last time the accession of Icerd was brought up in Malaysia back in 2018, it faced such strong opposition from certain groups that the plan was eventually shelved.

On Suhakam Day on Sept 9, celebrating the commission 25th anniversary, Prime Minister Datuk Seri Anwar Ibrahim had said there must be a balance between human rights and the responsibility to maintain the nation’s peace and stability.

He also said that the issue with acceding to Icerd is not the country’s commitment to human rights but the need to first consider domestic sentiments, and not doing this could lead to public anxiety.

“People will be suspicious, they think their rights will be trampled on, they think their religious principles, cultural values, and bumiputra interests will be disadvantaged.

“That is precisely the reason why when Icerd was introduced in Parliament then I stood up and said it is not something wrong in principle with the proposal, but the way it’s being bulldozed, it’s authoritarian,” he was quoted as saying.

Anwar said the issue with acceding to Icerd is not the country’s commitment to human rights but the need to first consider domestic sentiments, and not doing this could lead to public anxiety. — Bernama

Adding that Suhakam must consider the concerns of the masses regarding Icerd, Anwar said the public must be properly educated before introducing any law to avoid negative reactions that could cause harm.

Noting that it is not a simple matter to be resolved, Mohd Hishamudin agrees there must be constant advocacy and public assurance that there is nothing to fear about Malaysia being a party to Icerd, which was initiated by the United Nations in 1965 to deal with global racial intolerance.

“Malaysia is a multiethnic, multicultural, and multilingual society, and the many ethnic groups in Malaysia continue to maintain separate cultural identities.

“In view of this, Suhakam will continue to raise awareness of racial discrimination, as this subject is not alien to Malaysia. The elimination of racial discrimination in the context of our multiracial society is key to our national harmony, unity and happiness,” he says, adding that Suhakam remains ready to collaborate with strategic partners to tackle this long chafing human rights issue.

Sunday Star speaks to Mohd Hishamudin to find out more about his vision for Suhakam in the next three years, how he plans to facilitate efforts to accede to these treaties, and why it is important to do so.

> How have your first two months as Suhakam chief commissioner been so far?

I had been a Suhakam commissioner previously for three years from 2019 to 2022. It is wonderful to be back at the commission meeting familiar members of the Suhakam family.

I thank the government and His Majesty the Yang di-Pertuan Agong for this privilege to serve Suhakam again, all the more so this time as Suhakam’s chairman.

Yes, I am now well settled into the position, having chaired three of the commission’s meetings and participated in several of its activities. This includes Suhakam’s 25th anniversary celebration on Suhakam’s “birthday” on Sept 9, with our Prime Minister gracing the occasion.

> As the new Suhakam chairman, what is your vision for the commission over the next three years, what do you hope to achieve during your term?

As to my vision in steering Suhakam, with the support of the members of the commission and its officers, I shall do my best to ensure that Suhakam fulfils its mandate, diligently and courageously without fear or favour, namely to carry out the functions entrusted to the commission by Parliament via the Human Rights Act of 1999.

Allow me to add here that the Suhakam Act defines “human rights” as referring to the fundamental liberties as enshrined in Part II of the Federal Constitution.

Examples of fundamental liberties are the right to life and liberty, the right not to be compelled to perform acts of slavery or forced labour, the right to equality, the right to freedom of speech, the right to freedom of movement, the right to peaceful assembly, the right to association, the right to profess religion, the right to no discrimination in the administration of education, and so on.

The Suhakam Act also imposes upon the commission the obligation to have regard for the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.

Of course, it is not possible to achieve everything within just three years. It is a gradual process requiring time, patience and perseverance.

It is inevitable that there has to be a prioritisation of objectives. It requires adequate financial and manpower resources. In this regard, Suhakam requires the support of the government.

>As a former Court of Appeal judge, how do you think your experiences in the judiciary will shape how you approach your new position?

My experience as a former judge has brought me close to human rights issues as I had to hear and decide on a number of cases on human rights issues while on the bench. Hearing and deciding on these cases enabled me to have a better and deeper understanding and appreciation of such issues.

> In the past, Suhakam was often criticised for being a “toothless tiger” due to a lack of enforcement powers. What do you think has changed recently that has improved Suhakam’s role?

Suhakam extends its deepest appreciation to (Minister in the Prime Minister’s Department, Law and Institutional Reform) Datuk Seri Azalina Othman Said for her support of Suhakam. Her commitment has been instrumental in the successful tabling and debate of three Suhakam annual reports for 2020, 2021, and 2022.

Additionally, the amendments to the Suhakam Act that came into force on July 10, 2024, marked a significant milestone in the strengthening of human rights protection in Malaysia.

These amendments represent a comprehensive effort to fortify Suhakam’s role and operational capabilities.

With these amendments, Suhakam is now better equipped to address a wide range of human rights issues, including – but not limited to – prison reform, racial discrimination, xenophobia, freedom of religion, and the rights of vulnerable groups such as the Orang Asli/Asal and stateless individuals.

His experience as a former judge has brought him close to human rights issues, says Datuk Mohd Hishamudin.

> You previously mentioned that you hope Putrajaya will sign key international treaties such as the Refugee Convention and Icerd. Why do you think becoming a party to Icerd is important for Malaysia?

Icerd was initiated by the United Nations in 1965 to deal with global racial intolerance.

Malaysia remains one of the only 14 countries that are yet to become a party to Icerd. This does not augur well for Malaysia’s image internationally.

Following the 14th General Election [GE14 in 2018], the then-new Pakatan Harapan government, in line with the coalition’s manifesto, planned to ratify Icerd.

However, due to strong opposition from some quarters, the government abandoned the plan.

Malaysia is a multiethnic, multicultural and multilingual society, and the many ethnic groups in Malaysia continue to maintain separate cultural identities. Transborder immigration makes Malaysia an even more complex society.

In view of this, Suhakam will continue to raise awareness of racial discrimination as this subject is not alien to Malaysia and it is also not a simple matter to be resolved.

> How does Suhakam plan to help ease that opposition to ratifying Icerd?

The subject of acceding to Icerd is perceived as a sensitive matter and any approach deemed “wrong” could lead to backlash.

The problem requires a comprehensive plan together with support from various stakeholders.

As the Prime Minister said, there is nothing wrong with the proposal in terms of principle, but the approach taken must take the sentiment of the people into account.

It is time to learn to accept the reality of Malaysia’s heterogeneity and celebrate our differences without prejudice.

Suhakam remains ready to collaborate with strategic partners to tackle this long-overdue human rights issue.

There must be constant advocacy and public assurance that there is nothing to fear about Malaysia being a party to Icerd.

On the contrary, the elimination of racial discrimination in the context of our multiracial society is key to our national harmony, unity, and happiness.

> What about boosting efforts for the accession of the Refugee Convention?

To date, 146 states are parties to the Refugee Convention of 1951. Malaysia is among the minority of countries that have yet to become a party to the Refugee Convention.

In my view, it would be a good move if Malaysia were to be a party to the Refugee Convention. Then Malaysia could pass the necessary legislation to legalise the presence of refugees in this country.

Such legislation would not make them citizens or permanent residents of this country but will provide a system of evaluation by an authority that will determine whether an asylum seeker is a refugee or not.

It must be appreciated that under the proposed legislation, a person does not automatically become a refugee just because he claims to be a refugee or just because he comes, as he claims, from a particular country.

He has to satisfy the authority, established under the proposed legislation, that he comes under the definition of “refugee” as prescribed by Article 1 of the Refugee Convention; that is to say, he fled to this country because he suffered persecution in his home country by reason of his race, religion, nationality, or political beliefs, and has a genuine fear of returning to his home country.

A legislation on refugees legalising the temporary stay in this country of “genuine” refugees, through the issuance of a “refugee visa” would solve the problem of their legal access to employment, of legal access to healthcare facilities and their legal access to education in public schools for their children.

Refugees can thus live in this country in peace, self-supporting, and with dignity.

With respect, Malaysia needs to review its current policy of treating refugees as mere illegal immigrants.

Suhakam plays a crucial role in working hand in hand with the government to achieve the common goal of safe and peaceful communities by advising the government with regard to the accession of the remaining six international treaties.

This can be done through various activities to promote a better understanding of international human rights principles and to facilitate the exchange of best practices in policing with resource experts from UN treaty bodies and state or non-state actors in the relevant fields.

> What do you think about Malaysia ratifying the Rome Statute, especially as Malaysia has been very vocal about supporting the International Criminal Court (ICC) case against Israel recently? Would this give Malaysia more weight with the ICC?

The Rome Statute of the ICC allows the prosecution of those responsible for international crimes, such as genocide, crimes against humanity, war crimes and crimes of aggression.

Currently, 124 states are parties to the Rome Statute.

Suhakam has consistently advocated for the accession of the Rome Statute since 2005 to create a better understanding of the important role of the ICC in the promotion and protection of human rights and the rule of law in Malaysia.

Suhakam is of the view that this move is a signal of the commitment of the country in ensuring that universal peace is protected, and justice and basic rights upheld without any compromise.

Indeed, in 2019, the Malaysian government, upon the advice of the then attorney-general Tan Sri Tommy Thomas, was on the verge of acceding to the Rome Statute.

And Malaysia’s Foreign minister then, Datuk Saifuddin Abdullah, had deposited the instrument of accession to the Rome Statute. This was followed by the Foreign Affairs Ministry issuing a press release announcing Malaysia’s accession to the Rome Statute.

One of the objectives towards Malaysia’s accession to the Rome Statute then was to bring justice to the Rohingya refugees at the ICC.

Unfortunately, before the accession could legally take effect, the government had to withdraw it due to strong opposition from some quarters.

For Malaysia, acceding to the Rome Statute will be an additional legal avenue to bring justice to all victims of human rights violations. The universality of human rights through instruments like the Rome Statute can help move Malaysia and our neighbours forwards on difficult issues.

As a state party to the Rome Statute, pursuant to Article 14(1), Malaysia will be able to refer to the atrocities committed in the Gaza conflict to the Office of the Prosecutor of the ICC for investigation and prosecution.

As Malaysia faces issues such as the mass graves of human-trafficked victims at Wang Kelian that carries cross-border implications on the execution of justice, Suhakam reiterates its call for the government to revisit its decision. Acceding to the Rome Statute will be an additional legal avenue to bring justice to all victims of human rights violations.

> Some have argued that Malaysia does not currently have the necessary legal structure to properly abide by the Rome Statute even if we were to ratify it. Thoughts?

With the aim to strengthen the rule of law, human rights, and accountability domestically and internationally, Suhakam calls upon the Malaysian government to hold engagements with Suhakam and other relevant stakeholders for the accession and developing recommendations to amend domestic laws to comply with the requirements of the Rome Statute.