Whilst genocide is an example of gross violation there are other acts
of torture and cruelty that must not escape our attention. Some of
these acts are state sanctioned, for example the death penalty,
corporal punishment and detention without trial. Other acts of cruelty
include ill treatment of prisoners and of illegal immigrants, violation
of the rights of indigenous people, violation of the fundamental right
of freedom of speech and privacy and the list goes on. All of these
occur in some countries and some of these occur in all countries.
So
what is the value of the Declaration today? It is this. As the world
grows smaller and as we become increasingly borderless, nations can no
longer continue to carry out acts of cruelty with impunity. In the
information age, it is not possible for nations to hide away from the
international glare and continue to perpetrate injustices upon its
people. There is much more awareness of human rights and human rights
movements have received great impetus around the world. The starting
point for these movements is the Declaration. The Declaration has also
given birth to many other treaties and covenants that define human
rights further. Although not legally binding it is the standard bearer
of human rights. If at all, the Declaration is more relevant today
than ever before because more and more people are becoming acquainted
with it worldwide.
In Malaysia, the Human Rights Commission of
Malaysia Act 1999 (or the “SUHAKAM Act”) by Section 4(4) singles out
the Declaration to be one document for which due regard can be had when
considering complaints of infringements of human rights, but only
insofar as it is not inconsistent with the Federal Constitution.
However, the impact of the Declaration outside the purview of the SUHAKAM Act is debatable. This is apparent from the case of Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309, where the Federal Court had cause to consider both the Declaration and Section 4(4) of the SUHAKAM Act.
In
respect of the 1948 Declaration, the Federal Court was of the view
that, being a resolution of the General Assembly of the United Nations
and not a convention that is subject to the usual ratification and
accession requirements by Member States, it does not have the force of
law in this country. Insofar as Section 4(4) of the SUHAKAM Act is
concerned, the Federal Court interpreted the clause as merely
constituting:
We
hope the Courts will be more robust than this in absorbing and
assimilating the wonderful ideals of the Declaration into our
jurisprudence.
Time and again, we have seen in Malaysia that we
cannot solely rely on constitutional provisions to safeguard our human
rights and civil liberties. The UNDHR ought to be our keystone to
better understand human rights and to enforce the protections accorded
under the Constitution. In our aide memoire seeking candidature on the
Human Rights Council in 2006, Malaysia spoke of her commitment to human
rights. The memoire said “
Malaysia
believes that the new Human Rights Council has an important role to
play in the universal promotion and protection of human rights and in
ensuring the effective enjoyment by all of all human rights. In order
to achieve these lofty goals, the Human Rights Council needs to be made
strong, fair, effective and efficient, and free of acrimony and undue
politicization.”
Our aide memoire goes on to describe
SUHAKAM, our Human Rights Commission. Malaysia then pledged to work on
the HRC to promote its objectives internationally. We were then voted
in as a member of the Human Rights Council in May 2006. Regrettably,
although we have SUHAKAM who I believe is doing an excellent job given
their constraints, their report which they painstakingly prepare is
never read in Parliament.
The Rule of Law and Human RightsWhat is the relationship between the Rule of Law and Human Rights?
Without
the rule of law there can be no human rights and without human rights,
there can be no rule of law. They are both inextricably intertwined,
The
rule of law has been defined as the governance of society by laws that
are applicable to all and are enforced impartially. The cornerstones of
the rule of law are the supremacy of the law and the doctrine of
separation of powers. The rule of law must be distinguished from rule
by law. In the case of the rule of law, no one is above the law. In
the case of the rule by law simply put, those that govern do so by
decree, using the law to entrench their power. In short they operate
with little or no checks on their power and are “above the law”.
Generally,
the concept of the rule of law encompasses forms of government,
economic systems and human rights and is defined by looking at several
criteria.
Common criteria include an independent and impartial
judiciary, laws that are public, the absence of laws that apply only to
particular individuals or classes, access to justice, the absence of
retroactive laws and provisions for judicial review of government
action.
A core characteristic of the rule of law is that the law
must operate to curb the arbitrary exercise of power. Persons and
institutions who have power, whether social, religious, political or
economic, must exercise that power within, and subject to, a
comprehensive framework of binding rules.
The legal profession
has an integral part to play in the preservation and promotion of the
rule of law. In Malaysia, the Bar Council is a statutory body
established under the Legal Profession Act 1976 (“Act”) and the object
and powers of the Bar are set out in section 42 of the Act. These
include the duty to “uphold the cause of justice without regard to its
own interest or that of its members, uninfluenced by fear or favour.
The Bar Council has consistently spoken up on the following matters
concerning the rule of law:
• A strong and independent legal profession
• An independent, impartial judiciary
• The presumption of innocence
• The right to a fair and public trial without undue delay
• A rational and proportionate approach to punishment
• Strict protection of confidential communications between lawyer and client
• Equality of all before the law
• A transparent process accessible and equal to all
Without
these strong precepts, the fate of human rights is questionable. In
Malaysia, we have the dreaded Internal Security Act (“ISA”) and other
preventive detention laws made under Emergency Declarations that were
passed more than 30 years ago (which continue to exist although we are
no longer in a state of Emergency).
The Bar Council takes the
position that laws relating to detention without trial must be repealed
in keeping with the country’s pledge to uphold the universal values in
all aspects of national development, and for the promotion of the rule
of law and international human rights standards. The power of detention
without trial remains an exception to the norms of any fair, just,
equitable and democratic society. Our position on the Human Rights
Council heightens the responsibility of this government to adhere to
human rights norms.
On 21 June 1960, when the then Deputy Prime
Minister, the late Tun Abdul Razak presented the Bill for the ISA Act
in Parliament for its second reading, he said :-
“Let me make it quite clear that it is no pleasure for the Government to order the detention of any person. Nor will these powers be abused1.” (emphasis added)
Subsequently
in ending his reply on 22 June 1960 to the numerous questions and
issues posed in Parliament during the debate on the second reading of
the Bill the late Tun Abdul Razak said:
“We
have, Sir, as has been said, to defend our independence and to defend
democracy which we intend to establish. The Honourable Member for Ipoh
suggests that if we pass this Bill today, our children will have cause
to regret for what we have done. Sir, no one can predict the future,
history alone can tell; but I am of the firm conviction that if we pass
this Bill today our children and grandchildren will be very thankful
for our foresight, our forethought (Applause), for taking measures to
protect our young nation and our new State, and for taking measures to
make democracy safe in this country, and for taking measures this
country a healthy place for them to live in the years to come. I do
hope in that spirit Honourable Members of this House will now give this
Bill a second reading2.”
Unfortunately
the “War on Terror” has seen the sacrifice of human rights even by
those nations whom we had looked to as valuing and upholding human
rights. What this has done, is to allow governments who have long had
despicable legislation like the ISA, to turn to proponents of their
abolishment and say “You see, even those nations are following suit”.
And although the Malaysian Government publicly called for those held in
Guantanamo Bay to be given a fair trial, we still continue to have such
preventive detention laws on our own statute books.
The 13th of
December 2008 marked the first anniversary of the detention under the
ISA of four members of the Bar and one non lawyer for their purported
involvement in a cause called Hindraf.
This year also saw the
arrests of a blogger, a member of Parliament and a journalist under the
ISA. They have since been released. Last week we heard that a further
13 or so detainees under the ISA who have been released. We are
pleased the Government has taken these steps and we commend their
release but according to Suaram, there are approximately 46 people
still being held under the ISA. Not to mention the 2,000 or so who are
presently held under other preventive detention laws.
The
situation seems to be that the general label “threat to national
security” is being used to justify the most ridiculous of arrests. It
is a label that many, who are not aware, will accept as legitimate.
The war on terror has thus allowed the perpetration of the grossest
acts of abuse in the name of national security.
And the ISA is
not the only issue of concern. We have to grapple with deaths in
custody, rights of refugees, indigenous rights, corporal punishment
(whipping), the death penalty, access to justice issues, and the
curtailing of fundamental freedoms. In the last two or three years we
have seen the government open up some democratic space but suddenly
this year, we see new ISA arrests, lawyers questioned about their
clients, the banning of books, curtailing of the freedom of assembly
and most recently the arrests and intimidation of the Jerit cyclists.
The
difference now is that people are more vocal in their opposition to
these acts reflecting an increased awareness of human rights issues in
Malaysia.
ConclusionNehru said, in his famous “Tryst with Destiny” speech, which is of universal application:
If the Universal Declaration of Human Rights (UDHR) is our moral compass, the Rule of Law is our safety net in the choppy seas of human existence.
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