From Hafiz Hassan
The United Nations Working Group on Arbitrary Detention (UNWGAD) has come into prominence again among the Malaysian public following former prime minister Najib Razak’s petition to the group seeking his release from prison, or a retrial, of his SRC International case.
The UNWGAD investigates alleged cases of deprivation of liberty imposed arbitrarily or inconsistently with international standards set forth in the Universal Declaration of Human Rights or international legal instruments.
This makes the UNWGAD the only non-treaty-based mechanism whose mandate expressly provides for consideration of individual complaints. (https://www.ohchr.org/en/special-procedures/wg-arbitrary-detention/complaints-and-urgent-appeals)
Acting on the information in the petition, the UNWGAD will transmit the allegation(s) to the government concerned through diplomatic channels with an invitation to reply to the group within 60 days with the government’s comments and observations on the allegations made.
In respect to Najib’s petition, the UNWGAD may:
- consider that the case is not one of the arbitrary deprivation of liberty, and accordingly, it will render an opinion to this effect;
- consider that further information is required from the government or the source, and accordingly it may keep the case pending until that information is received;
- consider that it is unable to obtain sufficient information on the case, and accordingly it may file the case provisionally or definitively; or
- decide that the arbitrary nature of the deprivation of liberty is established, and accordingly will render an opinion to that effect and make recommendations to the government.
The opinion is sent to the government, together with the recommendations, and 48 hours after this notification, the opinion is also conveyed to the source of the allegation(s) for information.
The UNWGAD issues approximately 70 to 90 opinions per year. In each opinion, which is a public document (once adopted), the group examines whether the situation presented is one of arbitrary detention. (https://www.ohchr.org/en/special-procedures/wg-arbitrary-detention/opinions-adopted-working-group-arbitrary-detention)
The arbitrary detention must fall under one or more of five categories:
Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of their sentence or despite an amnesty law applicable to them);
Category II: When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as state parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights;
Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the states concerned, is of such gravity as to give the deprivation of liberty an arbitrary character;
Category IV: When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy; and
Category V: When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights. (https://www.ohchr.org/en/about-arbitrary-detention)
Najib may have alleged at least a Category III arbitrary detention.
If the allegation(s) satisfies any one of the above, the UNWGAD will recommend that the government take appropriate action (usually the release of the individual) and may also ask for reparations (for example, compensation) as well as guarantees of non-repetition.
Each of the UNWGAD’s opinions entails a follow-up section where the government and the source of allegation(s) are asked to respond within six months on the steps taken regarding the implementation of its recommendations. The UNWGAD may also invite other parties, such as civil society organisations, to provide further information on the implementation of the suggested measures.
To be sure, Najib is not the first detained person from Malaysia to have submitted a petition to the UNWGAD.
Anwar Ibrahim did it in 2015, following the Federal Court affirming his conviction and five-year sentence for sodomy on Feb 10 of that year.
Anwar submitted that his detention resulted from his exercise of the rights to freedom of opinion and expression and the right of political participation, as guaranteed by articles 19 and 21 of the Universal Declaration of Human Rights (UDHR).
Anwar further submitted that the government violated numerous procedural requirements during his sodomy trial, in violation of articles 10 and 11 of the UDHR. Finally, Anwar submitted that his detention was arbitrary and fell under Categories II and III.
The UNWGAD transmitted the allegations to the government on June 25, requesting the government to provide detailed information by Aug 26 about the current situation of Anwar and to clarify the legal provisions justifying his continued detention.
Having not received a response from the government, it decided to render its opinion on the detention of Anwar. The opinion, adopted on Sept 1, was as follows:
“The deprivation of liberty of (Anwar) is arbitrary, being in contravention of articles 10, 11, 19 and 21 of the (UDHR), and falls within categories II and III of the categories applicable to the consideration of cases submitted to the (UNWGAD).”
Consequent upon the opinion rendered, the UNWGAD requested the government to take the necessary steps to remedy the situation of Anwar without delay and to bring it into conformity with the standards and principles in the UDHR. The opinion may be searched here.
What will be the consequence of Najib’s petition? It is hoped that the government will respond when Najib’s allegation(s) is transmitted to it by the UNWGAD.
UNWGAD should first prioritise the many serious cases of arbitrary and dubious detentions of people in Russia , arising from their criticism and opposition of Vladimir Putin's War on Ukraine.
ReplyDeleteNajib's UNWGAD request is a frivolous and ill-considered attempt to cast doubt on his trial process, which was in fact meticulously proper in ensuring he was given all opportunity to a fair trial.
Najib's decision to switch counsel at the last minute , months after the Federal Court hearing date had already been set, then using the counsel change (by his own choice) as the excuse to push a long delay in proceedings , smacks of an attempt to manipulate the court process.