| For a summary of Malaysia’s review at the first cycle please click here. |
17th UPR session
Date of review: 24 October 2013
Date of report adoption: 20 March 2014
Working Group report: A/HRC/25/10
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SUMMARY SOGIESC issues during Malaysia’s 2nd UPR review |
I. Key issues/recommendations identified by NGOs
- Review the report of the High Commissioner for Human Rights on sexual orientation and gender identity and give consideration to implementing the recommendations therein;
- Ensure that the provisions in the Constitution that guarantee equality and protection for all are equally applied to members of the lesbian, gay, bisexual and transgender (LGBT) community;
- Immediately stop targeting and intimidating children and adults on the basis of their gender expression, gender identity or sexual orientation, and to make reparation for those who have been harmed through their anti-LGBT programmes in schools and institutions of higher learning;
- Prevent and take immediate and meaningful measures to stop hostility and intolerance towards people on the basis of their gender expression, gender identity and sexual orientation;
- Provide meaningful protection to LGBTIQ people against all forms of stigmatisation, violence and discrimination;
- Repeal and decriminalize all laws that directly and indirectly criminalize same sex sexual activities and cross-dressing;
- Lift the ban on sex reassignment surgery for Muslim trans people;
- Engage the LGBTIQ community as human beings with equal rights to understand the issues and concerns of the community.
II. Excerpts from input reports
National report
III. Implementation of accepted recommendations
D. Women, children, persons with disabilities and indigenous peoples (Recommendations 8, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 33, 34, 51, 58)
65. The National Family Policy and National Family Plan of Action were formulated in 2011 to provide the framework and guidance for efforts aimed at strengthening the family institution in the country. The Government has tasked the National Population and Family Development Board (LPPKN) to spearhead such efforts. Primarily, LPPKN undertakes awareness raising and education on issues such as gender, family relationships including conflict management and parenting skills, reproductive health and sexuality as well as on living without violence.
Compilation of UN information
III. Implementation of international human rights obligations
A. Equality and non-discrimination
12. UNCT noted that although the Government had amended article 8, paragraph 2, of the Constitution in July 2001 to include gender as a basis for non-discrimination, it had not amended the Penal Code, which contained several discriminatory provisions. UNCT further noted that despite the July 2012 decision by the High Court that regard had to be given to the obligation of Malaysia under CEDAW, and that it could refer to CEDAW in clarifying the term “equality” and “gender discrimination” under article 8, paragraph 2, of the Constitution, the wording suggested that discrimination based on gender coupled with other grounds continued to be permissible.
13. UNCT expressed concerns about discrimination against indigenous, disabled, refugee, asylum-seeking, migrant, stateless, and lesbian, gay, bisexual and transgender children.
Summary of stakeholders’ information
I. Information provided by the accredited national human rights institution of the State under review in full compliance with the Paris Principles
C. Implementation of international human rights obligations
9. SUHAKAM expressed concern about ill-treatment, discrimination, bullying, vilification, humiliation and intimidation of sexual minority groups.
II. Information provided by other stakeholders
A. Background and framework
3. Institutional and human rights infrastructure and policy measures
28. JS1 noted that the Commissioners of SUHAKAM had shown more willingness to deal with controversial issues such as sexual orientation and gender identity rights by initiating dialogues with religious groups and other stakeholders, participating as observers in BERSIH 2.0 and BERSIH 3.0 rallies, holding an on-going public inquiry into the events of BERSIH 2.0, and appointing counsels to hold watching briefs in workplace gender discrimination and child rights cases. JS1 however expressed concern that SUHAKAM’s annual reports to Parliament were not debated.
C. Implementation of international human rights obligations
1. Equality and non-discrimination
33. JS1 stated that Malaysia refused to recognize sexual orientation and gender identity rights as human rights noting that lesbians, bisexuals, gays, transgendered, inter-sexed and queer persons were vilified, faced violence and were subjected to constant harassment by state and non-state actors alike.
3. Administration of justice, including impunity, and the rule of law
48. Joint Submission 9(JS9) recommended that Malaysia immediately stop targeting and intimidating children and adults on the basis of gender identity or sexual orientation, and make reparation for those who have been harmed through their anti-LGBT programmes. JS4 made similar recommendations.
4. Right to privacy, marriage and family life
50. While noting that the criminalization of same-sex conduct is incompatible with international human rights law and the mere existence of such laws encourages and reinforces intolerance, abuse and discrimination against the LGBT community in Malaysia, and that laws that penalise same-sex conduct stigmatize LGBT persons and make it difficult for them to claim and assert their rights, CHRI recommended that Malaysia: embark on a process of repealing Section 377A, Section 377B and Section 377D of the Malaysian Penal Code that criminalise consensual same-sex conduct between adults.
III. References to SOGI during the Working Group review
A. Presentation by the State under review
9. The Government stated that matters involving LBGT and adherents of other schools of Islamic thought will be handled carefully and consistent with cultural traditions, religious doctrine, societal norms, and in accordance with national laws and regulations.
B. Interactive dialogue and responses by the State under review
49. Belgium was concerned by the ill-treatment of human rights defenders, including those defending LGBT rights, and by the death penalty.
114. Montenegro asked what plans were in place for Malaysia to become a party to core international human rights instruments and what measures had been adopted to prevent child, and early and forced marriages.
119. Netherlands noted that Malaysia was not a party to some key human rights treaties. It expressed concern about the practice of caning and the situation of LGBT persons.
IV. Conclusions and/or recommendations
The following recommendations were rejected by Malaysia:
146.98. Take legislative and practical steps to guarantee that LGBTI persons can enjoy all human rights without discrimination (Germany);
146.99. Introduce legislation that will decriminalize sexual relations between consenting adults of the same sex (Croatia);
146.100. Decriminalize homosexuality and respect the fundamental rights of LGBT persons (France);
146.101. Take the necessary measures to eradicate the discrimination based on sexual orientation (Argentina);
146.102. Delete those provisions that could favour discriminatory practices against persons based on their sexual orientation and gender identity (Chile);
146.103. Repeal sections of the Malaysian Penal Code that criminalize consensual same-sex conduct between adults (Netherlands);
146.104. Enact legislation prohibiting violence based on sexual orientation, and repeal laws that directly or indirectly criminalize consensual same-sex sexual activities (Canada).
The following recommendation was partially accepted:
146.150. Take steps to address increasing trends in early, forced and child marriage (Sierra Leone).
Further information on Malaysia’s response to recommendations can be found here.
V. Adoption of the Report
The report of the working group was adopted at the 25th regular session of the Human Rights Council in March 2014.
STATEMENTS
Malaysia
On recommendations that do not enjoy support, the government does not completely reject the possibility of revisiting those recommendations as appropriate. Malaysia has taken steps since the 1st cycle in 2009. The government has set up a steering committee to work on a national human rights action plan with working groups for 5 key areas, including (1) civil and political rights, (2) socio- economic rights, (3) rights of vulnerable and marginalized groups. (…) The government is looking for ways to engage with civil society at the grassroots level.
Human Rights Commission Malaysia
SUHAKAM welcomes the increasing attention among NGOs towards the UPR process. and regrets any reprisals against NGOs. (…) Their participation should not be seen as a threat; and SUHAKAM regrets any punitive actions taken by the authorities against NGOs for their involvement in human rights issues. The Commission would also urge that accession to the remaining core international human rights should be given priority (ICCPR, ICESCR, ICERD and CAT, ed. JH).
Algeria
Algeria particularly welcomes the approval of recommendations made by Algeria to continue consultations in the run up to ratifying international human rights treaties and measures to counter trafficking of migrants.
Botswana
We applaud the legislative reforms aimed at enhancing the enjoyment of civil and political rights. These include (…) the promulgation of the Peaceful Assembly Act of 2012.
Brunei Darussalam
Brunei Darussalam welcomes Malaysia’s continuous efforts in ensuring the socioeconomic rights of its people through the implementation of its various government programmes. In particular, we commend its initiatives on enhancing the well-being of children, the empowerment of women in the labour force as well as on ensuring access to education for all its young citizens.
China
China thanks Malaysia for having accepted its recommendations to pursue international and regional cooperation and step up the fight against human trafficking.
Cuba
Cuba congratulates Malaysia’s progress and tangible results in implementation of recommendations of the first cycle of the UPR that shows real commitment to improving the human rights situation for its people. That involves a number of areas such as education and health, combating poverty, and also the promotion of women’s rights, the rights of the child, the rights of people with disabilities and the rights of indigenous people.
Asia Pacific Forum on Women, Law and Development
We congratulate Malaysia for accepting recommendations on women’s rights, including “to launch a comprehensive national policy on gender equality”. (…)
But we are disappointed: Malaysia rejected recommendations to remove its reservations to CEDAW, CRC and CRPD. Malaysia stated that it is “unfounded” that Malaysia’s “Islamic Family Law … discriminates Muslim women on marriage issues.” Malaysia should therefore have no objections to removing its reservations to Article 16 of CEDAW, on equality in marriage. Malaysia rejected Canada’s recommendation to criminalise marital rape. (…)
Malaysia stated that child marriage has “never been a trend”. In Malaysia, girls aged 16 can be legally married; and girls below 16 and boys below 18 can be married with special permission. In 2012, more than 1000 such special permissions were given. (…)
The government has directly and indirectly harassed human rights groups which participated in the UPR, including declaring the coalition COMANGO illegal. Moving forward, we hope the government will meaningfully engage with NGOs.
Several NGOs criticised Malaysia for not sufficiently fighting corporal punishment, including of youth; the use of the death penalty; reported cases of reprisals against NGOs; police misconduct; denial of due process, and; restrictions to freedom of assembly.
Commonwealth Human Rights Initiative
CHRI regrets Malaysia’s rejection of all recommendations related to sexual orientation and gender identity. “Carnal intercourse against the order of nature” is punished with imprisonment and whipping in Malaysia. In addition to a breach of international obligations the provisions have allegedly been used to harass opponents of the government. Criminalisation of same-sex conduct encourages and reinforces intolerance, abuse, discrimination and marginalisation, leading to an overall destabilisation of society. CHRI urges the government to issue a moratorium on prosecutions and to take necessary action to protect members of the SOGI community and all human rights defenders from threats, intimidation and violence.
Human Rights Watch
The recommendations addressed to Malaysia reflect the broad concerns about its unwillingness to sign and ratify core UN human rights conventions and bring its domestic legislation into conformity with international law, in particular concerning the rights to freedom, association, and assembly, and due process rights. (…)
Human Rights Watch regrets that Malaysia refuses to recognize the basic rights of its LGBT population, and has failed to repeal penal code article 377 B, which criminalizes consensual adult sexual relations.
Action Canada for Population and Development
We commend the government’s acceptance of recommendations to step up its efforts to reduce maternal mortality, including through an increased access to quality family planning; take necessary steps to ensure the accessibility of the sexual and reproductive health services in Government facilities; take effective measures to reverse the increasing trend of HIV/AIDS incidence by strengthening the National Strategic Plan on HIV/AIDS prevention. (…)
We strongly encourage the government to remove any legal barriers to access abortion services, ensure access to a range of contraceptive methods and integrate comprehensive sexuality education as part of formal school curriculum.
We are concerned, however, with Malaysia’s complete refusal to respect, protect and fulfil the rights of individuals with diverse sexual orientations, gender identities and expressions through the rejection of recommendations to decriminalize same-sex sexual relations. Rejecting these recommendations is a refusal by the government to guaranteeing the rights of individuals with diverse sexualities, gender identities and expressions to live free from all forms of stigma, discrimination and violence.
We remain equally concerned regarding the government’s rejection of recommendation for criminalizing marital rape through the removal of the exception in Section 375 of the Penal Code. This represents a gross violation of women’s right to live free from all forms of violence and we urge the government to reconsider its position on this issue.
Concluding statement by Malaysia
The government acknowledges that there remain challenges in the protection of human rights in the country. In this regard, the government will continue to undertake necessary action with a view to improve in certain key areas. Malaysia remains committed to reviewing its position on the six core human rights instruments. (…)
The government continues to engage with UN mechanisms. It has therefore decided to extend an invitation to the Special Rapporteur on the trafficking of persons and the Special Rapporteur on the right to health. The government wishes to further emphasise that it welcomes engagement with all stakeholders on human rights in general and on the UPR and its follow up implementation in particular. Such engagement should be undertaken in accordance with the law in the interest of full transparency and accountability of all parties involved.
VI. Further information
UPR Documentation