Statement by the Ambassador of Malaysia, Hsu King Bee
at the Open-ended Interesessional  Consultations 
Friday, 21 July 2006

Mr. President,

Malaysia will touch on both the Universal Periodic Review (UPR) and the review of mandates and mechanism. 

On UPR, we see Operative paragraph 5(e) of Resolution 60/251 as the core reference.  It provides the fundamental principles, basic requirements, as well as a parameter or scope for a UPR in the Council.   And the Council resolution has outlined the process for it to develop the modalities of a UPR.  For now, we wish to focus on the criteria of the review mechanism.

Firstly, UPR must be based on objective and reliable information.  At the outset, there should be specific agreement as to what constitutes objective and reliable information.  At the core, the sources of information should be credible, and which have universally recognized mandate and competence in the field of human rights, in addition to the State subject to the review. 

Secondly, the information should relate to the fulfillment by each State of its human rights obligations and commitments, as stated in the said Resolution.  In this regard, we believe that the review should be based mainly on obligations and commitments specifically made by the State concerned through its ratification of, or accession to, international human rights treaties, as well as its respective constitution and domestic laws. It is also important to take into account its national particularities, as well as its historical, cultural, and religious background.  

Thirdly, all States without exception must be submitted to the UPR with the same uniformed procedure to meet the requirement of universality of coverage and equal treatment of this exercise.  Therefore, the scope of the review should be universal, focusing on all aspects of human rights given their interdependence, indivisibility: civil, political, economic, social and cultural rights, as well as the right to development.  It is equally important that there should be a standard format of the review that is applicable to all States regardless of the timing when they are up for the review, although members of the Council will have to be reviewed during their tenure as provided for in OP 9 of Resolution 60/251. 

Fourthly, the UPR must be a cooperative mechanism, based on an interactive dialogue, with full involvement of the State concerned.  This is indeed another important approach that we should adopt for this exercise in line with the fresh beginning that many of us have placed our hope on.  We should be careful not to turn the review exercise into a kind of prosecution or interrogative mode that can dampen the spirit of cooperation and dialogue.  It should not be a forum for “bashing and shaming”.  Instead, it should lead to constructive engagement and cooperation that can assist the State concerned to build and enhance its capacity to live up to its human rights obligations and commitments either through technical assistance or advisory services, or both, which can be an outcome or follow up to the exercise.   This will meet the requirement for the review mechanism that takes into account capacity-building needs of the State concerned.
Fifthly, the point about the need to avoid duplication of work for the review by the Council with that of treaty bodies is of paramount importance.  The review exercise will undoubtedly entail additional responsibilities not only the Council, but specifically so for the State to be reviewed. Therefore, the review process should not be too cumbersome and burdensome on States, particularly on developing countries, some of which do not have the requisite resources or capacity for this purpose.  

As regards the time allocation for the review exercise, we are open to some alternatives that have been presented.  On periodicity, we should agree on a reasonable time frame that would not be too cumbersome on states and at the same time, taken into account, the level of development of states to be reviewed.

Finally, given the one year timeframe for the Council to develop the modalities for the UPR mechanism, we believe we will have sufficient time to deliberate and agree upon a clear and well thought out formula on a consensual basis.  Therefore, we should proceed carefully in this process, and should avoid any hasty decision.  Indeed, this is a major exercise that will set the standard to be applied by the Council for many years to come. 

Mr. President, 

On the review of mandates and mechanism, there are 3 broad areas subject to review, namely the mandate holders, expert advice body and mechanism as well as the complaint procedure.  The Council should begin with the review of those mandates that will expire this year.

At this stage of the discussion, we would like to outline briefly how we foresee the requirements and scope of the review process for each of these three broad areas. 

For the mandate holders:
Establishment of the mandate.  The Council should as far as possible establish a mandate through consensus decision.  A point has been made some of the current mandates are products of controversial resolutions of the Commission;
Selection of mandate-holders.  Candidates should directly be elected by the Council based on nominations by States, taking into account the professional qualifications and expertise of candidates, as well as certain set of criteria, and also equitable geographic representation as to the overall composition of mandate-holders.  This could be done in a similar fashion in which experts of treaty bodies are elected;
There should be clear terms of reference for each mandate holders and code of conduct for all;
There should also be a specified and uniformed term of office for each of mandate-holder;
There should be a regular review of performance of mandate-holders.  A system could be devised to assess performance and correct any gap that may exist in order to maintain a high level of professionalism among mandate-holders;
Last but not least, there should not be any overlapping of mandates;

For the expert advice mechanism
The work of the Sub-Commission and its subsidiary bodies has proven to be useful for the Commission. We believe the Council must maintain the system of expert advice such as that of the Sub-Commission.  The Council must, therefore, ensure the continuity of all the work done by the Sub-Commission thus far, and it should not be lost in the transition to its successor advisory body;

For the complaint procedure
The complaint procedure under the Commission, that is, the 1503 procedure could be maintained.   For the review of this aspect, confidentiality of the procedure remains an important feature.  Clear criteria should be laid down for admissibility of complaints or allegations, and it should be strictly observed in processing such complaints.  A concerned state should continue to be allowed to provide inputs directly to the mechanism processing the complaints, and focus should be given to the capacity building and technical assistance if required in addressing the cases brought under consideration.

12.	We will provide our views in details when the Council undertakes the review on each of these aspects. 

Thank you, Mr. President











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