FIDH-SUARAM Advocacy note

November 2014

A committed but too shy EU support to human rights in

Malaysia
The economic growth and societal change of Malaysia require more rather than less attention to human
rights issues by the European Union. With the upgrading of Malaysia to the status of upper-middleincome country, the country will not benefit any longer from bilateral EU aid. Economic development
is however not an automatic synonym of improvement of the human rights situation in a country. In
Malaysia, the GDP growth is hiding an increase of authoritarianism, poor governance, spiralling
corruption, and declining religious tolerance. A few months ago, Malaysian Prime Minister Najib Tun
Razak explicitly presented humanism, secularism, liberalism and human rights as new threats to the
country.
In the perspective of the EU Treatys obligations (article 21) and Strategic Framework on Human
Rights and Democracy, the EU must use strategically the current PCA and FTA negotiations 1 with
Malaysia to obtain human rights improvements, starting with the ratification of the core international
human rights treaties. The EU, as an important trade partner of Malaysia 2, must use its political
leverage on this country in a more assertive way.

PCA: Political and Cooperation Agreement, FTA: Free Trade Agreement.

Malaysia is the EUs second most important trading partner in ASEAN, after Singapore. The EU is Malaysias fourth
largest trading partner with a total trade of 33 billion in external trade.

FIDH and SUARAM draw the EU's attention towards the following human rights challenges and call
on Brussels to work with Malaysian civil society on the proposed solutions.

1. Publicly challenging Malaysia's records on human rights

During its 2013 Universal Periodic Review3, Malaysia accepted 150 recommendations out of the 235
made by other states. Malaysia refused most of the recommendations concerning civil and political
rights, including the revision or repeal of the Sedition Act, the Peaceful Assembly Act, the Prevention
of Crime Act, the Security Offences (Special Measures) Act, and the Evidence Act. The SUARAM
briefing illustrates the serious restrictions on freedom of expression and peaceful assembly as well as
the arsenal of repressive laws that allow the Malaysian authorities to crack down on dissent 4. This
repression is also made possible by police abuses, which often results in torture and death in custody,
by the control of the executive branch over the judiciary, and by a worrying deterioration of media
freedom, ranging from technical interference to physical attacks on reporters.
Until now, apart from the occasional criticism by the European Parliament with regard to cases
concerning prominent figures (like the conviction of Malaysian opposition leader Anwar Ibrahim), the
European Union has generally refrained from expressing concern over human rights violations in
Malaysia publicly. The EUs support for human rights in Malaysia mostly focused on campaigns for the
abolition of the death penalty and the ratification of the Rome Statute of the International Criminal
Court (ICC). However, neither objective has yet been reached. While these efforts must continue, it is
important that the EU responds more effectively to human rights violations in Malaysia.
In its interaction with Malaysian authorities, the EU must broaden the agenda to areas such as the rights
to freedom of expression, assembly, and association, as well as the impact of business on human rights.
EUs engagement must not be limited to the highest level of government, but also seek to promote the
role of civil society in discussions with authorities.

UPR info, Responses to Recommendations & Voluntary Pledges by Malaysia, Second review, Session 17, October
2013, http://www.upr-info.org/sites/default/files/document/malaysia/session_17__october_2013/recommendations_and_pledges_malaysia_2014.pdf

The period following the May 2013 elections has been marked by an increase in the arbitrary and abusive application of
the Sedition Act, targeting elected Members of Parliament, lawyers, academics, social activists, students and journalists.
Although the government has repeatedly pledged to repeal the law, no action has been taken so far. A National Harmony
Bill is said to be in preparation to replace the Sedition Act but the civil society has not been informed or consulted. The
Peaceful Assembly Act is another key piece of legislation used to restrict the rights to freedom of assembly and
association. It has particularly been used to persecute organisers of peaceful Black 505 opposition rallies called to
protest alleged electoral fraud in the 2013 elections.

2. Addressing the impacts business activities on human rights

The EU and Malaysian must take tangible measures to prevent human rights violations stemming from
their own policies. For a fast growing economy like Malaysia, this means a particular focus on
investment and development projects.
In the absence of human rights safeguards, Malaysias 11th Development Plan as well as projects such
as the Sarawak Corridor of Renewable Energy risk severely affecting the right of indigenous peoples.
Malaysias rejection of several important UPR recommendations regarding indigenous peoples has
further heightened concerns over the impact of development projects on these vulnerable communities 5.
The EU must keep monitoring Malaysias development policies and ensure that human rights violations
are adequately addressed through redress mechanisms. Policies must be put in place to prevent the
recurrence of such abuses by conducting impact assessments and genuine consultation with affected
communities.
The EU and Malaysia have also pay special attention to business operations in the country. More than
2,000 companies from EU Member States operate in Malaysia.6 In order to ensure that these
companies' activities do not negatively affect human rights, the EU, in cooperation with its Member
States and their companies, must promote the adoption of domestic legislation and business investment
frameworks that is in line with international principles on business and human rights.

3. Using Treaties' negotiations to obtain genuine human rights commitments

FIDH and SUARAM welcome the fact that the draft agreement on the EU-Malaysia Partnership and
Cooperation Agreement (PCA) contains a human rights clause. However, our organisations call on the
EU not to reduce human rights to a mere formality in future FTA and PCA agreements. Merely having
a human rights dialogue after the conclusion of the PCA falls short of fulfilling the EUs commitments
on human right in accordance with the Lisbon Treaty and the Strategic Framework for Democracy and
5

Notably concerning the need to set up an independent body to investigate disputes over land, territories and resources
and the need to take measures, with full and effective participation of indigenous peoples, to address the issues
highlighted in the National Enquiry into the Land Rights of Indigenous Peoples. However the authorities accepted the
recommendations entailing a more top-down approach to the destiny of indigenous peoples (i.e. aiming at eradicating
poverty or enhancing economic and social welfare but in the absence of consultation process and free, prior and
informed consent). http://nhri.ohchr.org/EN/Themes/BusinessHR/Business%20Womens%20and%20Childrens
%20Rights/SUHAKAM%20BI%20FINAL.CD.pdf

Ministry of International Trade and Industry, Malaysia, European SME's In Malaysia To Benefit From New EUMCCI
Web Portal , 01 Oct 2014 , http://www.miti.gov.my/cms/content.jsp?id=com.tms.cms.article.Article_c9b98dc9c0a81573-2265b1bd-50640b19

Human Rights. The establishment of a enhanced human rights dialogue is welcomed as long as proper
participation from civil society is ensured.
The negotiations of the PCA and the FTA must also be conceived as a dynamic process allowing the
EU and Malaysian to work together on human rights-related actions before the agreements are
concluded. The roadmap, which the EU and Malaysia should establish through genuine participation of
the civil society (see recommendations), must aim at the repeal or amendment of all repressive laws
before the conclusion of the agreements. A special emphasis must be put on the amendment or repeal of
those laws that are frequently used to crack down on activists and communities who protest against
harmful development and economic projects.
In addition, the EU and Malaysia must work on agreeing on a human rights clause within the FTA with
the aim to become an effective tool to address human rights issues in the country (see
recommendations).

4. Supporting civil society activities

FIDH and SUARAM believe that the EU has overall been supportive of the work of human rights
NGOs in Malaysia. The EU Delegation and Member States' missions regularly meet with civil society
and human rights activists, bilaterally or through the EU's Human Rights Working Group, to discuss
issues such as womens rights, the elimination of racial discrimination, and freedom of expression. The
EU Delegation maintains regular exchanges with NGOs, sends observers to trials against human rights
defenders, and promotes the content of the EU Guidelines on Human Rights Defenders.
In recent years, the EU has provided financial support to NGOs working in the field of women's and
children's rights, non-discrimination, freedom of the media, and indigenous people. With the current
reduction of staff in the EU Delegation 7, civil society will now have to turn to Global Calls for
Proposals to find support for its activities rather than seeking financial support directly at Delegation
level through Country Based Support Schemes (CBSS). FIDH and SUARAM fear that such a change
may have consequences on the effectiveness and sustainability of civil society activities. Many NGOs
may not have the capacity to respond to the Calls for Proposals or to absorb the important amount of
finance offered in calls designed for large- rather than middle-sized projects. It is therefore important
for the EU to find alternative ways to support civil society beyond small emergency grants, for example
in the form of funds at the regional level or sub-grants to local NGOs.
The EU must also step up its political support to civil society. The EU must push for the amendment of
the 1966 Societies Act, which offers no judicial remedy to an association whose registration has been
suspended or refused by the authorities. The EU must ensure that FTA provides for a genuine enabling
7

The operational section at the EU Delegation has been closed following the upgrading of Malaysia to the status of
upper-middle-income country.

environment for civil society. Failure to do so would create a democratic gap in terms of monitoring of
the agreement. The negotiation process should be an opportunity to hold tripartite discussions between
the EU, Malaysian authorities, and civil society. The EU should offer technical advice to Malaysian
authorities to reform the Societies Act and ensure the new version complies with international
standards.
The fact that Malaysian authorities continue to criminalise peaceful assembly after the Court of
Appeals declared a section of the Peaceful Assembly Act as unconstitutional is proof of the political
will to repress peaceful assembly. This issue should be addressed by the EU at the highest levels of the
political dialogue. The EU should also address the issue of recent calls made by Malaysian
government officials to adopt legislation similar to the Indian Foreign Agents Registration Act, which
would provide a legal basis for monitoring of foreign funds to civil society organisations.

Recommendations

FIDH and SUARAM call on the EU and its Members States to:
Publicly and firmly condemn all types of human rights violations occurring in Malaysia and
urge an immediate end to the harassment, persecution, and arbitrary arrest of its citizens for
political reasons.
Demand the immediate release of individuals convicted for political reasons, notably under the
Sedition Act.
Demand that Malaysia live up to its international pledges, in particular in the perspective of the
Malaysian Chairmanship of ASEAN in 2015.
Establish a human rights roadmap in cooperation with Malaysian authorities and civil society, in
order to achieve tangible results before the FTA are agreed. This roadmap must contains the
following minimum elements:
--- Adoption of a moratorium on all executions with a view to abolish the death penalty;
--- Repeal of the 1948 Sedition Act and amendment or repeal all other laws which are not in
line with international standards, including: the 2012 Peaceful Assembly Act; the 2012
Security Offences (Special Measures) Act; the 1959 Prevention of Crime Act (PCA); the
1985 Dangerous Drugs (Special Preventive Measures) Act; the 1960 Evidence
(Amendments) Act; various amendments to the Criminal Code; the 1972 Official Secrets
Act; and the 1984 Printing Presses Publications Act.
--- Ratification of key international human rights conventions, including the ICCPR, the
ICESCR, the CAT, the CERD, ILO Convention 169, the ICC Rome Statute, and the
1951 Convention Relating to the Status of Refugee and its optional protocol.
--- Implementation of all the recommendations accepted by the Malaysian government
during the 2013 UPR.
--- Adoption of a National Human Rights Action Plan that is in line with the abovementioned objectives.
Ensure that human rights are included in the negotiations and the structure of the future Free
Trade Agreement (FTA) with Malaysia. Key aspects must include:
--- Conducting a Human Rights Impact Assessment (HRIA) through genuine and
comprehensive consultations with the civil society;

--- Establishing a civil society observatory for the impacts of the FTA on human rights.
---Ensuring that Malaysias National Development Plan includes capacity building and
implementation of flanking measures that address the impacts of the FTA.
--- Designing the human rights clause of the FTA in order to ensure respect of human rights
standards by the parties and companies and provide an efficient enforcement mechanism
with opportunities for judicial and non-judicial remedies and penalties in case of
violations. The clause must also guarantee the rights of states to regulate, protect,
respect and fulfil human rights. The FTA must not provide protection for investors
responsible for human rights violations against individuals and communities affected by
their investments.
Place the support for civil society, human rights defenders, local communities, and indigenous
peoples at the centre of their interactions with Malaysia. EU and its Members States must:
--- Urge the Malaysian authorities to ensure that all citizens' human rights, including the
rights to freedom of expression and assembly are respected;
--- Press Malaysian authorities to amend the Societies Act to bring it in line with
international standards, and provide technical support to that effect;
--- Press for effective and immediate investigation into serious cases of human rights
violations, and the formation of an Independent Police Complaint and Misconduct
Commission (IPCMC) to investigate allegations of torture and deaths in police custody;
--- Demand that Malaysian authorities set a date for the country visit of the UN Special
Rapporteur (UNSR) on Freedom of Assembly and Association and extend an invitation
to the UNSR on the rights of Indigenous Peoples and the UNSR on Freedom of
Religion;
--- Organize a civil society seminar before the EU-Malaysia human rights and political
dialogues;
--- Include civil society in sectoral discussions and in the negotiation process of the FTA;
--- Propose alternatives to make up for the end of Country Based Support Schemes in order
to ensure financial support to the work of human rights NGO.
Encourage Malaysian authorities and companies to adopt binding regulations and a business
investment framework to prevent human rights violations by economic operators and ensure
accountability in the case abuses take place. Regulations must be in line with international
human rights standards, including the UN Guiding Principles on Business and Human Rights.

 Prepare a strategy on business and human rights that ensures that current and future
investments by EU-based companies do not negatively affect human rights in Malaysia. This
strategy, to be designed with Malaysian authorities, companies, and civil society, should aim at
setting up binding regulatory measures corresponding in line with international standards.
Work with Malaysian authorities to ensure that their development plans do not negatively affect
human rights.