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©Malaysiakini (Used by permission)
by Andrew Khoo

Punching above our weight.

For those unfamiliar with this idiomatic expression, it means to function at a level greater than would otherwise be expected.

It originates from boxing, which is divided into weight classes, e.g. flyweight, lightweight, bantamweight, light heavyweight and heavyweight. Depending on your physical weight, you are classified accordingly.

To 'punch above your weight' means to compete in a class higher than for what your weight would otherwise qualify you.

This expression is nowadays used in geopolitics. Politicians in Great Britain, Tony Blair being the best most recent example, aspire for that country a place on the world stage far greater than its economy should otherwise permit.

It is a mid-level European economy, and yet plays a much larger and more significant role in world affairs, being a permanent member of the United Nations Security Council, of the G8 group of developed nations, and as the home country of the British Commonwealth. It is also one of the quartet of nations looking into permanent solutions to the Middle East problems.

In this day and age of modern diplomacy, Malaysia has been a respected nation.

We have produced widely respected diplomats, such as Razali Ismail, one-time president of the General Assembly and also former Special Representative of the United Nations Secretary General to Myanmar.

I recently attended a conference jointly organised by our Ministry of International Trade and Industry and the World Trade Organisation in which one of the speakers was M Supperamaniam, our former Ambassador and Permanent Representative to the World Trade Organisation in Geneva, Switzerland and a respected Malaysian leader of the developing nations during the Uruguay and Doha rounds of international trade talks.

We have also had Param Cumaraswamy as a United National Special Rapporteur on Judicial Independence. There are others.

Failing to sign many

Yet for all these successes, Malaysia seems hell-bent on pursuing an agenda of international ignominy.

One of the reasons is its human rights record. Malaysia comes up for peer review by the United Nations Human Rights Council as part of the Universal Periodic Review process in February 2009.

Already Malaysia’s continued and repeated use of the Internal Security Act 1960 has been highlighted as an area of troubling concern.

The fact that Malaysia has not signed the Convention Against Torture lends credence to the many allegations of inhumane treatment and denial of basic human rights during ISA and other forms of detention practised upon persons detained by the Malaysian government.

So too is Malaysia’s refusal to sign the Convention on Refugees and her poor record on the treatment of refugees and migrant workers, most recently highlighted in Tenaganita’s excellent book Revolving Doors.

Malaysia’s lack of signature of 2 leading international human rights treaties, namely the International Convention on Civil and Political Rights (ICCPR), and the International Convention on Economic, Social and Cultural Rights (ICESCR) is also a bone of contention.

Most of these are not new treaties by any stretch of the imagination. The ICCPR and ICESCR, for example, were drafted in the 1960s and became available for signature in the 1970s.

Unfortunately Malaysia, and indeed most of the Asean member countries, have significantly failed to accede and/or ratify these treaties.

There are also issues of the remaining reservations to the 2 international treaties that Malaysia has signed up to, namely the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC).

In this area of human rights, Malaysia could still have salvaged some credibility if it were serious about that aspect of the Asean Charter that provides for an Asean human rights body (HRB).

Prior domestic legislation

At the recently-completed 21st LawAsia Conference here in Kuala Lumpur, the attorney-general delivered a keynote address on the potential impact on national sovereignty of the Asean Charter.

Personally I found his speech disappointing because while he highlighted possible theoretical repercussions, most of these were unlikely to occur.

He need only have consulted Ahmad Fuzi, Malaysia’s Ambassador-at-large and our representative to the High Level Panel (HLP) which will draft the terms of reference of the HRB to understand how much the HLP had already scaled down the scope of ambition of the proposed HRB.

A very conservative 15-point outline has already been prepared by the HLP.

When asked to do so during the meeting, Ahmad Fuzi was unable (or unwilling) to articulate Malaysia’s perspective on human rights in general, i.e. whether it was seen as a ‘good’ in itself worthy of promotion and protection, or merely another tool to gain for Malaysia and Asean some measure of credibility and standing in the international community (but with little or no practical or positive benefit at home to individual citizens and residents).

Under our constitution, Malaysia currently practices a ‘dualist’ approach to international treaties, which means that until and unless domestic legislation is introduced to give effect to our international obligations, they are not part of Malaysian law.

Legal developments the world over have already accepted that the United Nations Charter of 1945 and the Universal Declaration of Human Rights of 1948 (which celebrates its 60th birthday on 10 December 2008), both of which we signed up to in 1957 and again in 1963, are provisions not of an international treaty which requires prior domestic legislation, but are part of customary international law which do not require enabling domestic legislation.

Countries are charged with giving full expression to customary international law and our judges should seek to breathe into our existing laws these universal and underlying concepts of basic human rights.

However our courts and our judges have singularly refused to acknowledge these developments and expand Malaysian jurisprudence accordingly.

Even in the area of international trade, Malaysia is losing credibility because it had initially led developing nations in their refusal to discuss the so-called "Singapore issues", namely issues of trade facilitation, transparency in government procurement, trade and competition and trade and investment.

Developing countries have now begun discussing trade facilitation. And now in her own negotiations with the United States on a free trade agreement, Malaysia has conceded to allow a discussion on government procurement.

Take the ICC lead

One such new way that Malaysia can attempt to 'punch above its weight' is to take the lead with respect to membership of the International Criminal Court (ICC).

Already 108 nations have signed up to membership of the ICC, which is only 10 years old. This reflects the combined desire of the international community to see that those who perpetrate war crimes, crimes against humanity and crimes of aggression do not escape international justice with absolute impunity.

Malaysia has so far refused to join, articulating concerns that the ICC only reflects ‘victor’s justice’.

However this view is unfounded by the very fact that a ‘victor’ nation such as the United States did not feel sufficiently protected or shielded by the rules of the ICC and the provision of the Rome Statute (which created the ICC) for it to join.

The establishment by the Perdana Peace Foundation of the Kuala Lumpur War Crimes Commission and the Kuala Lumpur War Crimes Tribunal represents a move in the opposite direction.

On the one hand it recognises that international war criminals should not escape with impunity.

Yet this ‘go it alone’ approach moves us further away from collective international action in this area. In my opinion, it is an example of false bravado, a misplaced expression of the spirit of ‘Malaysia Boleh’, and reflective perhaps of primarily one man’s views.

Rather than start its own parade, Malaysia should grasp this opportunity to promote and encourage the full participation of third world countries in the ICC.

Again, participation by Asean is notable by its absence (only Cambodia is a full member, while the Philippines and Thailand have signed but not yet ratified).

Malaysia is risking losing a golden opportunity to participate in the development of international criminal law. By not being a member, we are unable to influence the policy-making process, the rules-making mechanisms and the growth of international criminal jurisprudence.

Non-member nations cannot propose judges, a shame given Malaysia’s participation in the International Criminal Tribunal for the former Yugoslavia through the presence on the bench of Dato’ K. C. Vohrah.

Other Malaysian judges are missing out on similar opportunities.

Membership of the ICC would also enable us to receive assistance with improving the quality of criminal law in our country, be they for the accused, the victims, the prosecution or the defence, and for the standards and status of criminal law in general.

The inculcation of high standards of justice can only serve to promote greater respect for the institutions of justice (the courts, the judges, the prosecutors, the defence and the law-enforcement agencies) and the rule of law.

Malaysia has much to gain, and much more to lose, if there is no serious attempt to reassess the role she wishes to play on the international scene.

There is a serious danger that instead of ‘punching above our weight’, we will be knocked out for the count.

Let’s not take this lying down.

ANDREW KHOO is co-currently deputy chair of the Malaysian Bar Gats Committee and co-deputy chair of the Malaysian Bar Human Rights Committee. He is currently in The Hague, Netherlands attending the Assembly of States Parties to the Rome Statute as an NGO observer.

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