Preliminary Observations by the United Nations Special Rapporteur in the field of cultural rights Karima Bennoune at the end of her visit to Malaysia

21 September 2017

Introduction

The Special Rapporteur would like to thank the government of Malaysia for extending an invitation to her to visit this great and diverse country. She was deeply appreciative of the fact that she was able to visit different areas of Malaysia, to meet with as many as 62 government agencies, to have discussions with a wide array of civil society, activists and experts including representatives of different minority groups, women’s human rights defenders, indigenous rights defenders from different regions, LGBT rights defenders, religious activists and other representatives of Malaysia’s rich human rights movement, and to travel unhindered, the only obstacle being the confines of time which are inherent in such missions. The Special Rapporteur was able to visit Kuala Lumpur, Kelantan and Sarawak, and to meet with a delegation from Sabah which kindly travelled to Kuching to see her. She visited a multi-ethnic school, a Chinese museum, a gallery devoted to Wayang Kulit and attended several cultural performances. She met with a wide array of persons, including lawyers, artists, museum professionals, writers, cartoonists, filmmakers, sociologists, puppeteers, specialists in inter-faith and inter-ethnic dialogue, and academics.

The Special Rapporteur deeply appreciates the care with which official meetings were clearly prepared and the extensive documentation she received to assist her in her work. She is particularly grateful to the relevant staff of the Ministry of Tourism and Culture for their ongoing assistance and hospitality. In addition, she was delighted to have met the Minister of Tourism and Culture and appreciated his welcoming of her feedback in advance.

The initial version of that feedback, in the form of preliminary observations, appears below. This will be followed at a later date by a report to the UN Human Rights Council, on which the Malaysian government will have an opportunity to comment prior to publication.

Background on the Mandate and Cultural Rights

The United Nations Human Rights Council has repeatedly stressed that “cultural rights are an integral part of human rights, which are universal, indivisible, interrelated and interdependent.”  Cultural rights protect the rights for each person, as well as groups of people, to develop and express their humanity, their world view and the meanings they give to their existence and their development through, inter alia, values, beliefs, convictions, languages, knowledge and the arts, institutions and ways of life¹.They also protect access to cultural heritage. In addition, cultural rights are essential tools for development, peace and the eradication of poverty, and for building social cohesion, as well as mutual respect and understanding between individuals and groups, in all their diversity².

The core concern of the cultural rights mandate is the right of all people to take part in cultural life without discrimination as guaranteed in Article 27 of the Universal Declaration of Human Rights. The Special Rapporteur and her predecessor have both adopted a holistic, inclusive approach to the meanings of culture. The purpose of the cultural rights mandate is not to protect culture or cultural heritage per se, but rather the conditions allowing all people, without discrimination, to access, participate and contribute to cultural life in a continuously developing manner.

One of the key commitments of the mandate in any context is to promote the enjoyment of cultural rights without any discrimination, including that based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, sexual orientation, gender identity, age, migrant status, disability or poverty.

The Special Rapporteur identifies as key the following principles, which were recalled by the UN Human Rights Council in its resolution 19/6. As enshrined in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. The Vienna Declaration and Programme of Action further reaffirms that “all human rights are universal, indivisible and interdependent and interrelated.”

Cultural rights are not tantamount to cultural relativism. They are not an excuse for violations of other human rights. They do not justify discrimination or violence. They are not a license to impose identities or practices on others or to exclude them from either in violation of international law. They are firmly embedded in the universal human rights framework. Hence, the implementation of human rights must take into consideration respect for cultural rights, even as cultural rights themselves must take into consideration respect for other universal human rights norms³.

The Approach to Human Rights in Malaysia: General Concerns

The Special Rapporteur believes it is essential for Malaysia, both in relation to concerns in the national context, and so as to exercise regional leadership on human rights, to improve its record on the ratification of international human rights treaties, as well as their implementation. She was pleased to learn that ratification of the International Covenant on Economic, Social and Cultural Rights and of the International Covenant on Civil and Political Rights are under consideration. For the flourishing of cultural rights in Malaysia as well as for Malaysia to be able to play a positive role in a body like the UN Human Rights Council, this is an urgent priority, as is domestic implementation of these core standards. The Special Rapporteur was pleased to learn of the impending ratification of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

While Malaysia’s ratification of the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child are very positive, the Special Rapporteur continues to have concerns about Malaysia’s remaining reservations to these conventions, and calls for their withdrawal at the earliest opportunity.  She welcomes the news that consideration of this matter is underway.

It is also essential that thorough attention be paid to following up on recommendations made by UN human rights treaty bodies and experts. While some in government indicated that these are given serious consideration, some in civil society felt that little action had been taken in this regard on some critical issues.

The Special Rapporteur is pleased to learn of the thorough process, reportedly involving some 50 agencies and some elements of civil society, and taking note of the 2002 UN Handbook on National Human Rights Plans of Action, for developing a new national strategy on human rights. She was told that this was a way of assessing gaps between practice and human rights guarantees. Its stated goal is very laudable: to be a national document integrating human rights efforts by all Ministries and to contribute to the promotion of human rights in Malaysia. She was told that the drafters are “looking for a balance between domestic demands and international standards.” However, she hopes that the role of international standards as benchmarks will yet be clarified, and that concrete plans for monitoring of implementation of the plan will be included. She is pleased to learn that cultural rights are to be incorporated in the second pillar of the plan, and urges that these rights be strongly articulated in the document, and articulated in accordance with international standards, taking into consideration the work of the Special Rapporteur and her predecessor.

The structure of human rights governance is in flux in Malaysia with the ongoing introduction of human rights into the Integrity, Governance and Human Rights Department. The Special Rapporteur was very pleased to have the opportunity to meet with a representative of this evolving department and to hear of its approach to inculcating an “integrity and governance culture.” She was glad to hear this department’s recognition that the land rights of indigenous peoples remain an unresolved human rights issue and a gap in the law which it will be studying⁴.

In all the areas of its work, it will be essential that this new Integrity, Governance and Human Rights Department is adequately resourced to carry out its important work, that it pay adequate attention to cultural rights and non-discrimination in accordance with international standards, and that its recommendations are implemented system-wide. There should be clear coordination between it and other official entities with competence in the field of human rights, including the Ministry of Foreign Affairs.
The Special Rapporteur notes that particular challenges arise in light of Malaysia’s plural legal systems, including civil courts, Syariah Courts and indigenous customary courts. She plans to give these further consideration in her final report.

While the Special Rapporteur was pleased to meet many officials working in government who are committed to striving for improvement in the enjoyment of cultural rights, implementation and monitoring remain an outstanding concern⁵. It is worth remembering that according to General Assembly Resolution 60/251, when electing members of the Human Rights Council,” Member States shall take into account the contribution of candidates to the promotion and protection of human rights and their voluntary pledges and commitments made thereto.⁶”

Cultural Governance

A very sophisticated set of institutions exists in the area of cultural governance in Malaysia, both at the federal and state levels, and the Special Rapporteur was honored to have met with representatives of many of them.

She appreciates the commitment to diversity expressed repeatedly by cultural officials, and their pride, for example, in the diversity of holiday celebrations in Malaysia and in open house and home stay programs which are meant to foster inter-ethnic and inter-religious understanding. She also was pleased by their sense that culture is a critical part of development, that there is a need to promote arts in daily life and that “culture is the soul of the country.” Innovative programs, such as “one museum, one student” which aims to ensure museum visits by students, are being developed to increase cultural awareness. The national archive is undertaking a praiseworthy initiative to digitize its documentation system so that important historical documents are not lost.

The Special Rapporteur understands that cultural governance in a society characterized as one official phrased it by “super diversity” can be challenging and requires a thoughtful, contextualized approach. It also affords tremendous potential, and she is pleased to see official recognition of this. Efforts to build unity on a foundation of diversity are vital, and yet harmony cannot imply silence about issues deemed “sensitive,” a term the Special Rapporteur heard repeatedly. She thinks that it is important to continue to center the notion of inclusion of all of Malaysia’s cultures, religions and traditions on an equal footing, in accordance with international standards, rather than painting some as “others” which are merely “allowed,” a phrase which she also heard.

One issue the Special Rapporteur wishes to consider in future is the relationship between culture and tourism which have been combined in the Ministry at the federal level, and the understandable concerns about “the need to monetize culture” which can however have negative consequences. Most of all, she hopes that greater resources will be given to the culture sector and cultural institutions whose work is at the heart of guaranteeing cultural rights, harmony and inclusion.

Unity in Diversity

Malaysia has been known and has developed as a multi-ethnic alliance between a number of groups having different beliefs, languages and ways of life. This included the indigenous people and those who have, over time, come from various parts of Asia and elsewhere. One of Malaysia’s strengths has been the conscious decision to take advantage of all their diversity and creativity to build the nation.

During the course of the mission, the Special Rapporteur received many testimonies of this open, cross cultural, tolerant and inclusive culture. More must be done to preserve this in all parts of Malaysia, including by encouraging development of places for people to engage with one another, particularly at a young age, and through enhancing the use of multiple languages in schools. In both Sabah and Sarawak, the demographic balance is such that there is no overly dominant group. Accordingly, the necessity to respect the cultural expressions of all seems to be more naturally integrated in everyday life, yet this should not be taken for granted.

Both inter-group and intra-group diversity must be recognized and celebrated everywhere. While diversity between religions is recognized, intra-group/intra-religious diversity is insufficiently taken into account. The Special Rapporteur was sorry to hear reports that Malaysian Shia Muslims have complained about their inability to worship freely, and that they may face obstacles in carrying out rituals which are both cultural and religious.

Diversity exists both between and within groups as well as within individuals. Intermarriages, past history, but also fusions and new developments in traditions, dialects and practices to integrate a variety of influences have made a truly Malaysian blend that is unique, complex and rich and to which rigid categories do not do justice.

Accordingly, the use of the term “race” in the Malaysian context interchangeably with religion or ethnicity is problematic and should be re-considered. The UN Special Rapporteur on freedom of religion or belief has warned against equating religion and ethnicity.

The commitment of respect for cultural diversity has been challenged more recently. This is particularly apparent when considering the situation of groups such as LGBT, refugees and stateless persons, who will be discussed further in the final report, and of indigenous people, who are discussed below.

The Cultural Rights of Indigenous Peoples⁷

Sabah and Sarawak

The Malaysian Constitution recognizes the status of indigenous peoples in Sabah and Sarawak and has from the beginning granted them a certain degree of protection and autonomy. The active involvement of indigenous peoples in the management of parks and reserves as well as the representation and integration of arts, crafts, traditional costumes and performances in museums, touristic products and the national arts academy’s curriculum are positive features. However, more must be done to preserve diverse mother tongues and to increase the representation of indigenous peoples in the bodies focused on their issues and rights in all parts of Malaysia.

Some also experience pressure to conform culturally. For example, culturally significant tattoos are beginning to be considered in a negative manner and reportedly may now be prohibited for police officers, a rule which the Special Rapporteur was told may lead to invasive physical exams. Such cultural coercion and fear of it may lead indigenous peoples to remove their children from school which perpetuates their marginalization.

Still, perhaps the single most difficult issue, and one that has been raised with the Malaysian authorities in the past by UN human rights experts, is that of more than 400 cases of customary land disputes still awaiting judgement. The task force on this issue announced at the last Universal Periodic Review process is apparently unknown to some relevant stakeholders, who report that they have not been approached or consulted about its work to identify and recognize customary lands. The Special Rapporteur looks forward to receiving further information from the authorities of Sarawak, which she is told is forthcoming.

Peninsular Malaysia

The Orang Asli in peninsular Malaysia do not seem to enjoy the same recognition as the Sabahians and Sarawakians. Some report feeling pressured to conform and become “Malays”, especially at school. There are also reports of attempts to declare Orang Asli as Muslims on their documents and material inducements to convert.

 The Special Rapporteur heard reports of pressure at school on Orang Asli children to join Muslim prayers and wear headscarves, and of a dearth of representations of their history and ways of life in the curriculum. Teachers need to be conscious of the influence they can have on all children in their classes, including Orang Asli, and integrate tolerance and respect for diversity in their everyday interactions with children. The Special Rapporteur expresses grave concern about the reports of bullying of Orang Asli children in schools which contributes to the incidence of dropping out. All relevant agencies must take a strong position against this harmful practice and develop and implement a systematic program to fight against it and provide tools for the teachers and school administrators to prevent and resolve it.

The Special Rapporteur heard accounts of Orang Asli villages being displaced for infrastructure or large scale development projects, which implies loss of their traditional land. The needed process to have land recognized as customary land means engaging in a mapping of the Orang Asli presence that takes into account not only their current active use of the land on which they live but also access to the forest and consideration of their future needs. Loss of their lands means active destruction of their ways of life, including their possibility to transmit the rituals, beliefs, knowledge and practices related to it. Considering the number of recommendations that have been made in the past by international bodies and experts, more significant steps must be taken with (not for) the Orang Asli on this matter.

The past recommendations made by relevant UN bodies on the cultural rights issues confronting indigenous peoples in Malaysia must be fully implemented without delay. The Special Rapporteur on the rights of indigenous people should be invited to visit the country as a matter of priority.

Women

The cultural rights of women are a priority area of the Special Rapporteur’s mandate as identified by the Human Rights Council. It is worth recalling that cultural practices or what are claimed to be cultural practices must evolve when they constitute or lead to discrimination against women, including gender-based violence. Under article 5 (a) of the Convention on the Elimination of All Forms of Discrimination against Women, to which Malaysia is a state party, states are required to take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

The Special Rapporteur was very pleased to have a lengthy exchange with the representatives of the Ministry of Women, Family and Community Development, including with regard to their work on women’s rights and appreciates the seriousness with which they approach this important task, including through an intergenerational perspective. She commends their efforts to try to promote sexual and reproductive health, and sex education, but notes that this process involves consultation with religious authorities which may raise obstacles to advancement. She appreciates the openness of one official in telling her of the ongoing need to tackle cultural biases, and in particular the stigma related to violence against women which sometimes precludes women from seeking remedies. Positive efforts to implement flexible work schedule arrangements in this Ministry to allow both parents to work and take on family responsibilities should be spread in all public services as an example to follow. She further encourages this Ministry to increase its collaboration with women’s human rights defenders in civil society.

The Special Rapporteur looks forward to the review of the State Party report by the CEDAW committee in February 2018, and hopes that in that context Malaysian authorities will reflect thoroughly on both the positive developments with regard to women’s enjoyment of their cultural rights but also the outstanding and ongoing challenges which need to be addressed as a matter of priority.

The Special Rapporteur is concerned about the impact of the unilateral conversion of children on the cultural rights of both mothers and their children, and hopes that the process currently underway to address this issue will guarantee the equal cultural rights of all, without discrimination, and the best interests of the child in accordance with Malaysia’s obligations under international human rights law.

To enable women to freely participate in cultural life, the authorities need to ensure discrimination against women and gender-based violence at all levels and in all forms is addressed through the prompt enactment of a Gender Equality Act which she understands to be under discussion, and by strengthening and/or putting in place the necessary mechanisms and procedures for effective implementation, in consultation with women’s rights groups.

Authorities must also review the formal and informal education of religion, clergy and religious educators to ensure that training materials and programmes reflect the equality of women, taking into consideration the changing roles and realities of women’s lives.  In accordance with commitments made under CEDAW, they must review and rewrite school curricula, textbooks and teaching materials for religion, moral education, living skills, and all other subjects to eliminate discrimination against women and girls, and reflect instead the principle of gender equality. Moreover, to ensure women’s equal enjoyment of cultural rights, and human rights generally, it will be important to increase women’s political representation.

Persons with Disabilities

The Special Rapporteur strongly supports efforts by the Ministry of Women, Family and Community Development to improve accessibility for persons with disabilities which is critical to the enjoyment of cultural rights without discrimination. She was pleased to note that the Ministry has undertaken programmes to test the accessibility of, for example, public transportation. Their efforts in promoting accessibility require the full support of all relevant government agencies.

Freedom of Artistic Expression

The Special Rapporteur was pleased to engage with parts of the diverse and dynamic arts world in Malaysia. She was pleased to note the work of Aswara, the National Academy of Arts, Culture and Heritage, and the pride which some federal officials expressed to her regarding traditional art forms (even some that are banned in the state of Kelantan), as well as the fact that especially radio programming is available in multiple languages and dialects through Radio Television Malaysia, the public broadcasting system. She does note civil society calls to increase local multi-lingual content on television.

On the other hand, she has serious concerns about the restrictions and sometimes full bans that have been imposed on a number of artistic and cultural practices at the state level in Kelantan, and on certain authors, publishers, filmmakers and artists at the federal level that seem to have become stricter over time. Many of those consulted criticized the lack of transparency and dialogue in the process of reviewing their works and the difficulty for them to challenge the decisions.

Of particular concern are the bans and restrictions in the State of Kelantan, that target strong living heritage practices and their practitioners, that have contributed to the international reputation of Malaysia and its inscription on the UNESCO world representative list of intangible cultural heritage. These restrictions and the negative discourse around them and their practitioners have already threatened the transmission of these art forms. They are also setting a negative tone for other, informal restrictions in social and cultural practices that involve women performing on stage with mixed audiences.

The bans on Mak yong, Wayang Kulit, Main Puteri and Dikir Barait, and the restrictions on women performing for mixed audiences in Kelantan must be lifted without delay. Steps must also be taken to make up for the negative impact – including stigma – caused by these bans and restrictions and to support these art forms and their practitioners in close consultation with the latter. Simply moving practice of these art forms elsewhere, away from the very region where some of them emerged, is insufficient to guarantee cultural rights. Measures should be taken to provide better understanding and explanation about the meaning of these practices, and their long histories in Malaysia to overcome prejudicial views about them. In doing so, it is important not only to focus on the ritual elements but also on the social function these arts play in society, as spaces to engage in an intergenerational manner, to explore discuss problems and difficulties, as well as shared human universal experiences.

There is an urgent need to review and clarify the criteria for censorship of books and films and to make the decision-making process more transparent so as to guarantee cultural rights, including freedom of artistic expression. Terms like “controversial” or “sensitive” are too subjective to conform to international standards on freedom of expression.  In addition, more support should be provided for independent and documentary film producers, including platforms in national media to present these.
She was also surprised to hear of the banning of books, including some about moderate and progressive Islam, in the country when the government extols these very concepts abroad. This can have a chilling effect on needed debates. The UN expert encourages the Government to support a diversity of spaces and platforms for people to engage meaningfully with one another about culture, including on issues where they do not agree.

The Special Rapporteur calls for the repeal of the Sedition Act, for the amendments currently being made in the Communications and Multimedia Act to be consistent with international standards for freedom of expression and cultural rights, for the repeal or clarification of sections 211(1) and 233(1) of the CMA, and for the abolition of prior censorship bodies and processes.

She is also deeply concerned about the fact that cartoonist Zunar is facing 9 charges related to tweets, and calls for those charges, as well as the travel ban on him to be dropped. When his trial commences next week, the Special Rapporteur and other UN human rights experts will be following developments closely.

The Malaysian government needs to develop concrete plans to guarantee freedom of artistic expression.

Fundamentalism, extremism and cultural rights

Rising tides of fundamentalism and extremism, in diverse forms, today represent major threats to human rights, including cultural rights, elsewhere in this region and worldwide, and are growing challenges internationally that must be faced with urgency, using a human rights approach. This is also true in Malaysia. Fundamentalisms are: “political movements of the extreme right, which in a context of globalization ... manipulate religion, culture or ethnicity, in order to achieve their political aims”.⁸ Fundamentalisms have emerged out of all of the world’s major religious traditions. Opposition to fundamentalism is not akin to an anti-religion stance. Both religious believers who do not conform to fundamentalist dogma, including clergy, and non-religious people have often been targets of fundamentalist movements. Both have played important roles in the human rights struggle against fundamentalism. The impact of fundamentalism and extremism on cultural rights is the Special Rapporteur’s priority theme for 2017, and one of her major concerns during her mission to Malaysia as stated in the Background Note for the Mission.

The Special Rapporteur deeply appreciated Malaysia’s response to her thematic report on fundamentalism, extremism and the cultural rights presented to the 34th Human Rights Council in March 2017. “[T]he challenges and threats of fundamentalism and extremism to cultural rights, as highlighted in the Special Rapporteur’s report, deserve more consideration by this Council. In Malaysia’s experience ensuring a multi-racial, multi-religious and multi-ethnic population have freedoms to practice their cultures, traditions and religious belief has been essential and integral to our nation building and progress.⁹”

The Special Rapporteur also noted the commitments of the Malaysian government to representing a “moderate and progressive Islam,” including important statements made to this effect by His Excellency Prime Minister Najib Razak while she was in the country which she welcomed. The Prime Minister noted that Malaysia’s government “will also contribute in terms of the ideological warfare because you need to win the hearts and minds. And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam. The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.”¹⁰

He also asserted about defeating terrorists that “this is a battle that cannot be won solely by military means. It is just as important to fight the ideology that drives them.”¹¹

However, many sectors of Malaysian society encountered in different locales expressed concern at what they saw, in contradistinction to these important stated commitments, as the growing Islamization of the Malaysian society and polity, based on an increasingly rigid and fundamentalist interpretation of Islam which represents a significant break with the past. It is critical to ask what accounts for this striking discrepancy between rhetoric and lived reality recounted by many, and what its consequences are for the enjoyment of cultural rights. One lawyer said “I fear for my country.” A writer said, “there is a fire here. Wahhabism is creeping fast and deep into our society.” Some experts indicated that it was infusing the educational system and affecting the corps of teachers. As stated before, this tendency has reportedly had deleterious consequences for the cultural rights of religious minorities, for indigenous peoples, for women, for human rights defenders, including women human rights defenders, for LGBT persons, for artists and cultural experts, and many others in society, and most especially for the cultural rights and the freedom of religion of Muslims and people of Muslim heritage. In other words the freedom of religion or belief of Muslims themselves is now at stake in the struggle against fundamentalism in Malaysia.

Fundamentalist movements in many contexts often seek to impose a form of religion at odds with local forms of practice. In keeping with the spirit of the slogan, Malaysia Truly Asia, she hopes that the authorities will consider how to foster and allow to flourish the diversities of Malaysian Islam which represent the plurality and complex history of Southeast Asian Islams. Allowing religion to be homogenized under a hegemonic version of Islam imported from the Arabian Peninsula undermines the cultural rights of Malaysians.

The Special Rapporteur salutes the stated commitment of the Malaysian government to combatting terrorism which is vital to the protection of human rights. However, she notes that acquiescing to aspects of the underlying ideology of terror groups, such as that there is only one way to be Muslim or that religion should be used as a tool of state policy, can only create conditions that are more conducive rather than less conducive to the radicalization that heightens the risk of terror. She notes with concern that one state in the country, Kelantan, is referred to as “the Islamic State of Kelantan” by some of its state representatives with whom she met. She is also deeply concerned at the level of involvement of religious authorities, and often only those of the majority religion, in policy decisions throughout the country, including in the cultural and cultural rights areas.

The Special Rapporteur is deeply concerned that the parliament is consideration adoption of legislation under RUU355 expanding the punishments – including corporal punishments that violate international law - that can be imposed by Syariah courts, and regrets that some religious authorities with whom she met clearly support this expansion. She believes that such punishments pose a threat to human rights in the country and are difficult to rationalize with stated commitments to moderation and progressiveness

One example of the impact of a particular form of Islamization on cultural rights that the Special Rapporteur found worrying was the idea she heard repeatedly of a de facto dress code for Malaysian Muslim women in many contexts which has resulted in a transformation of the way women dress. This has reportedly normalized “modest” dress which is not traditional to Malaysia, homogenization of many women’s attire, and a reduction of Muslim women’s cultural choices in this regard, in a short span of time which was described to her as from 10-20 years. Other women are also effected by the regulation of “modesty.” Security guards are reportedly being allowed to police dress in some official buildings and it is impermissible to appear sleeveless therein. The Special Rapporteur was particularly concerned to hear reports that in school some girls had been told by teachers that they had to pay a fine if they came to school unveiled, and another report that a teacher said that the girls who covered were her children, but those who did not were not. She notes increasing representation of only one form of dress for Muslim women in official publications, including some given to her.

The Islamization that many perceive in the present has also affected official views of the past, with reports that the pre-Islamic history of Malaysia, as well as non-Muslim cultural heritage, are being omitted from textbooks. The Special Rapporteur would also like to carry out further research into the destruction of an archeological site in Kedah by a private actor. It is vital to keep alive the histories of Malaysia which are critical to promoting and protecting diversity and tolerance today.

The Special Rapporteur is especially concerned at the situation of cultural rights in this regard in the state of Kelantan where the state government is controlled by the Islamic Party of Malaysia or PAS, and where a state education official told her that there is only one way to be Muslim and any other form of practice is based on ignorance.

One of the most worrying developments about which the Special Rapporteur was informed is the emergence of several abduction cases reportedly targeting those associated with religious minorities, including Pastor Koh. This suggests the possibility of extremist violence, something currently experienced in many places in the world and in the region. She strongly supports the planned public inquiry to be held by SUHAKAM, the National Human Rights Institution, into these cases, and hopes that they will be afforded every assistance and support in this regard. She calls for every effort to be made to locate the missing persons in question.

There appears to be no official recognition or acceptance of non-religious persons, though experts indicate that there is nothing in the constitution against being an atheist. Moreover, the Special Rapporteur condemns the reported statement by a deputy minister charged with Religious Affairs that those involved in a recent gathering of atheists should be investigated. He apparently stated: “If it is proven that there are Muslims involved in atheist activities that could affect their faith, the state Islamic religious departments or Jawi could take action.” She believes that the rule that those choosing to leave Islam must undergo counseling and must obtain a certificate from a Syariah court to do so is demeaning and a limit on their right to take part in cultural life without discrimination. She was sorry to learn that some of the lawyers who represent clients in such cases are reported to be shunned. Non-religious persons must also be recognized, alongside the wide variety of religious believers as part of the fabric of a diverse and tolerant society. The Special Rapporteur on Freedom of Religion or belief has regularly reiterated “the right to freedom of religion or belief applies equally to theistic, non-theistic and atheistic beliefs. Furthermore, the right not to profess any religion or belief is also protected.”¹²

The Special Rapporteur is gravely concerned about the misuse of the concept of extremism to repress activities undertaken in accordance with international human rights standards, as warned against in her thematic report, which undercuts the much-needed fight against actual extremism. She was very sorry to receive reports that progressive Muslim groups and LGBT rights defenders have been erroneously labelled extremists, or like Daesh, in certain instances by authorities. This undercuts the struggle against actual extremism and undercuts the critical efforts of these human rights defenders.

In general, she was sorry to hear reports of the difficulties that human rights defenders and others face when they try to challenge fundamentalism, defend the diversities of Muslim culture and promote cultural rights. Whereas she has experienced Malaysian civil society as outspoken, several individuals declined to meet with the Special Rapporteur to discuss these particular issues reportedly due to fear of reprisals – the only area in which this was the case. The author Faisal Tehrani, 6 of whose books have been banned, has had booksellers afraid to sell his other books due to the chilling effect of the bans, has repeatedly received threats, has been accosted and insulted in public, as has a member of his family.

The Special Rapporteur deplores the fatwa against the Muslim women human rights defenders Sisters in Islam who are globally renowned for their work. This fatwa has compromised their important work protecting the rights of women, led to the cancellation of some of their events and made it harder for them to organize such events due to the stigma, as well as resulted in increasing threats and online harassment of their activists. The Special Rapporteur calls for the withdrawal of the fatwa, and will be watching developments in this case closely. The Malaysian authorities must take all needed steps to respect and ensure the rights of human rights defenders.

Conclusion

It is time to ensure that the lived reality of moderation and progressiveness in Malaysia is consistent with the rhetoric of its government. This is essential for the enjoyment of cultural rights. Human rights defenders report that not enough people are speaking out against the human rights impact of Islamization. More voices of actual moderation must be raised and those voices must be allowed to express themselves. Malaysia is a wonderful diverse country with a rich history, vibrant and multi-faceted cultures and a sophisticated set of cultural institutions in which many people can and do enjoy their cultural rights. However, the many gains achieved since independence and the cultural freedoms historically enjoyed and still enjoyed by many must be protected with vigilance. They cannot be preserved by rhetoric alone but rather by concrete action demonstrating the effective commitment to cultural rights of all, to cultural diversity and pluralism, and to unequivocal rejection of fundamentalist ideology.

Notes:

1. A/HRC/14/36, para. 9, and A/67/287, para. 7 and A/HRC/31/59, para. 7.

2. A/HRC/14/36, para. 3.

3. A/HRC/31/59, para. 27.

4. There should be widespread consultation with representatives of indigenous peoples in this process, meeting the international standard of free, prior and informed consent. It is also important to ensure that the previous recommendations made on these issues during the Universal Periodic Review process and by the Special Rapporteur on the right to food are considered.

5. The Special Rapporteur plans to make specific recommendations in this regard in her report to the Human Rights Council.

The voluntary pledges made by the Government of Malaysia in this context can be found at: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/72/77, UN doc. A/72/77.

6. This term is used in accordance with the UN Declaration on the Rights of Indigenous Peoples.

7. A/HRC/34/56, para. 4 citing Algerian sociologist Marieme Hélie-Lucas, “What is your tribe? Women’s struggles and the construction of Muslimness” in Dossier 23-24, Harsh Kapoor, ed.(London, Women Living Under Muslim Laws, 2001), pp. 49 and 51.

8. Statement by Mr. Syed Edwan Anwar, Permanent Mission of Malaysia to the United Nations Office and Other International Organizations, 34th Regular Session of the Human Rights Council, during the Clustered Interactive Dialogue with the Special Rapporteur on Terrorism and the Special Rapporteur in the Field of Cultural Rights, under item 3, 2 March 2017, 1500hrs.

9. www.whitehouse.gov/the-press-office/2017/09/12/remarks-president-trump-and-prime-minister-najib-abdul-razak-malaysia

10 www.pmo.gov.my/home.php?menu=speech&page=1908&news_id=854&speech_cat=2#, para. 15.

11. A/62/280, para 73