This article first appeared in The Edge Malaysia Weekly on October 7, 2019 - October 13, 2019

DATUK Seri Mohd Hishamudin Mohd Yunus has held high the torch of judicial independence in a career of almost 23 years in the judicial service. The retired Court of Appeal judge is noted for his fearless integrity in delivering a number of landmark decisions on civil liberties, constitutionalism and natural justice. In April, he was appointed to Suhakam, the national human rights commission — the latest in a long list of positions of public trust. In an email interview, he discusses with Rash Behari Bhattacharjee and S Kanagaraju the work that lies ahead for the commission.

The Edge: The change of government in the last general election offers Malaysia a chance to undertake fundamental reforms in areas like human rights. In terms of human rights education, how is Suhakam using this opportunity to inculcate respect for human rights as a core value of our society at all levels of education?

Datuk Seri Mohd Hishamudin Mohd Yunus: The ultimate purpose of human rights education is to empower the people with human rights knowledge so as to ensure the protection, respect and fulfilment of human rights of every individual. Recognising the importance of human rights education, the Human Rights Commission of Malaysia (Suhakam), through its Education and Training Division (ETD), has conducted several human rights education and training programmes.

Last year, Suhakam, through its ETD, signed a memorandum of understanding with Universiti Utara Malaysia to undertake several joint programmes pertaining to human rights and education. To further realise its vision for human rights education to be taught in schools by 2020, Suhakam organised several strategic meetings with key actors in education. Suhakam met Education Minister Dr Maszlee Malik on Dec 11, Deputy Minister of Education Teo Nie Ching on Oct 22 and Education director-general Datuk Dr Amin Senin on June 25. Suhakam briefed them on its Human Rights Best Practices in School Programme and Education, Promotion and Publicity Human Rights Modules for post-Primary School Achievement Test and post-Form 3 Assessment students.

Suhakam’s idea to introduce human rights education in schools was well-received. Suhakam was requested to cooperate with the Ministry of Education (MOE) to develop a human rights training module for the Teachers Training Institute and to give its input on human rights education to the ministry’s Curriculum Division. In order to gauge how well its training sessions were conducted and the level of knowledge the participants gained, Suhakam had also introduced a more structured evaluation using an online form as well as a pre and post-tests approach.

Race and religion have been exploited to promote hardline attitudes and intolerance among the people, and this has got worse in the past decade. How is Suhakam dealing with sensitivities over the special rights of Malays and the position of Islam in the Constitution when these sensitivities result in the erosion of human rights for the wider society?

Suhakam remains determined and steadfast in carrying out its role of promoting and addressing human rights in Malaysia. There are still some pockets of Malaysians, mainly from religious communities and political groups, who view basic human rights norms and freedom of choice as a “threat” to their faith or political beliefs; or who mischievously raise religious and racial issues for political reasons. There are also those who either do not understand or refuse to accept that human rights apply to everyone.

It is unfortunate that at the end of December 2018, there was a public assembly to object to the application of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in Malaysia. A blow to both human rights in Malaysia and Suhakam came in the form of the government distancing itself from participating in our Human Rights Day celebration that was misreported as a counter-rally, as it bowed to political pressure to reject accession to the ICERD. The groups opposing accession were irrationally claiming that accession would unravel social contracts built on the backs of affirmative action and the special position of Malays in the Federal Constitution.

Article 4 of ICERD requires state parties to condemn and outlaw the dissemination of racist propaganda and prohibit organisations based on racist ideas or those that promote racial hatred or racial supremacy, which Suhakam believes cannot be the vision or mission of any political party in Malaysia. It should not impact the existing social contract built on tolerance and harmony.

The rights of the indigenous peoples continue to be subjugated to the socioeconomic norms and legal system of mainstream society, despite judicial decisions in their favour. What is the focus of Suhakam’s work in this area and what progress is it making towards the recognition of their rights as an alternative society?

The rights of indigenous peoples remain a focus of Suhakam. Besides conducting awareness-raising programmes for the community, Suhakam continues to receive complaints of alleged infringement of rights and encourages the implementation of the recommendations made at the conclusion of the National Inquiry into the Land Rights of Indigenous Peoples.

Legal system

Getting recognition of their native customary land rights from the government has always been a major challenge for indigenous peoples in Malaysia. Jurisdiction over land matters falls within the authority of state governments, and for almost all state governments in Malaysia, the land and forest have been one of their main sources of revenue. Moreover, existing state policies do not give due recognition to the land rights of indigenous peoples. Laws in Malaysia largely have no provisions that specifically acknowledge the native customary rights of indigenous peoples. Although there have been several court rulings in favour of the indigenous community — such as in Adong bin Kuwau & Ors v Kerajaan Negeri Johor & Anor (1997), Sagong bin Tasi & Ors v Kerajaan Negeri Selangor & Ors (2002), Superintendent of Land & Surveys Miri Division v Madeli Salleh (2007) and Nor Anak Nyawai v Borneo Pulp Plantation Sdn Bhd (2001) — the later Federal Court case of Director of Forest, Sarawak v TR Sandah Tabau is a significant setback to the native customary rights of the Ibans of Sarawak. The indigenous peoples have urged the state governments to use court cases to formulate new laws to protect their rights.

Education

The current syllabus is seen as not taking into account the differences of values, culture and belief of Orang Asli children. The commission is still of the opinion that the MOE must give serious consideration to the teaching and learning of Orang Asli languages and Indigenous Knowledge, as provided for in Article 14 and Article 15 of the United Nations Declaration on the Rights of Indigenous Peoples.

The commission is also steadfast in its opinion that the Orang Asli Development Department and the MOE should give serious consideration to the setting up of community schools in settlements where there are no schools within the vicinity. These schools can introduce literacy and numeracy besides teaching arts and culture, which includes the language of that particular community.

Land rights

Suhakam’s National Inquiry report recommended the establishment of an independent National Commission on Indigenous Peoples. The functions of this commission, among others, should be to advise the government on laws and policies related to indigenous peoples, propose and monitor sustainable development programmes on indigenous peoples’ land, promote participation of indigenous peoples at all levels and conduct research on issues related to the well-being of indigenous peoples. The commission members should be composed mainly of indigenous peoples’ representatives who receive the support from, and acceptance by, indigenous peoples of Malaysia.

On the basis of the facts and determinations arising from the National Inquiry, 18 key recommendations were clustered under six main themes. The themes are:

i)    Prevent future loss of native customary rights land;

ii)    Remedy for land loss;

iii)     Address land development issues/imbalances;

iv)    Recognise indigenous customary rights to land;

v)    Address land administration issues; and

vi)    Recognise land as central to indigenous peoples’ identity.

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