The Malaysian Bar - Speech by Lim Chee Wee, President of the Malaysian Bar, at UN Human Rights Day (8 Dec 2011): Human Rights in Malaysia – A Victim of Opportunistic Politics and Conflict Between State and Individual

Speech by Lim Chee Wee, President of the Malaysian Bar, at UN Human Rights Day (8 Dec 2011): Human Rights in Malaysia – A Victim of Opportunistic Politics and Conflict Between State and Individual

Friday, 09 December 2011 10:03am

Salutations

Mr Kamal Malhotra, United Nations Resident Coordinator, Malaysia;

YBhg Datuk Prof Dr Khaw Lake Tee, Vice Chairperson, SUHAKAM;

Excellencies, Ambassadors and High Commissioners;

Tan Sri-Tan Sri, Datuk-Datuk, Datin-Datin;

Mr. Alan Vernon, Chair of the UNCT Malaysia Theme Group on Human Rights and Development; and

Distinguished guests.

Introduction

The Aspiration

On 10 December 1948, these words were written, adopted and declared in the Universal Declaration of Human Rights,

“Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

On 31 August 1957, these words were proclaimed by Tunku Abdul Rahman in our Independence,

“AND WHEREAS a constitution for the Government of the Persekutuan Tanah Melayu has been established as the supreme law thereof,

AND WHEREAS by the Federal Constitution aforesaid provision is made to safeguard the rights and prerogatives of Their Highnesses the Rulers and the fundamental rights and liberties of the people …

… shall be forever a sovereign democratic and independent State founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations.”

The question today is to what extent are these mere words of aspiration or do these words finding realisation and fulfilment in the daily lives of Malaysians. The year of 2011 witnessed people all over the globe striving and struggling to claim their dignity, rights and liberty.

In the words of the United Nations Office,

This year, millions of people decided the time had come to claim their rights. They took to the streets and demanded change. Many found their voices using the internet and instant messaging to inform, inspire and mobilize supporters to seek their basic human rights. Social media helped activists to organize peaceful protest movements in cities across the globe – from Tunis to Madrid, from Cairo to New York – at times in the face of violent repression. ¹

The Malaysian Reality – Freedom through struggle

This is equally true in Malaysia where individuals sought to exercise in the face of prohibition and at the risk of detention, the freedoms of opinion and expression, and of assembly and association declared in Articles 19 and 20 of the Universal Declaration of Human Rights and guaranteed by supreme law in Article 10 of our Federal Constitution.

It is not by good fortune alone that, save for the singular tragic event of May 13, Malaysia has enjoyed peaceful times. It is that Malaysians are by nature peaceful and respectful of the law and each other. To suggest, as some Malaysian politicians so often do, that the enjoyment of such peaceful existence is the consequence of its restrictions in the name of public order and safety on freedoms of speech and assembly, is simply wrong. Increasingly, discontented Malaysians are challenging that claim and they do so with their mouth and with their feet in outright opposition and in debate. Justice Learned Hand observed that liberty lives in the hearts of the people. The same applies to public order – its future must lie in the hearts and hands of the people. The experience of Libya and of London shows that this is so.

In response, the might and far right of government and such other apparatus associated with it (Utusan Malaysia, self-declared leaders of communities and fringe NGOs) would attempt to suppress and oppress such opposition and debate through prosecution, intimidation and demonisation either in the real world or in the cyber world. Any dissenting view in opposition against that of the government is characterised by some politicians as being political and the dissenting voice is challenged to a duel in politics with such dissenting voice only to be heard if spoken on a political party platform. Again, this disregards the fundamental reality, which is that, to quote Charles de Gaulle, “politics is too serious a matter to be left to politicians”.

Such is the sad state of intellectual discourse. None illustrates this better than three controversies which exploded this year.

The Call for Free and Fair Elections by BERSIH 2.0

It is now apparent that the Malaysian Government has blundered in a serious way in its handling of BERSIH 2.0. The ultimate vindication for BERSIH 2.0 is the establishment of the Parliamentary Select Committee whose interim recommendations are similar to some of the suggestions of BERSIH 2.0.

Peaceful Assembly Bill

Article 10 of our Federal Constitution provides that “(e)veryone has the right to freedom of peaceful assembly and association.”

The Honourable Prime Minister in his Malaysia Day speech pledged, amongst others, that,

“The Government will also review section 27 of the Police Act 1967, taking into consideration Article 10 of the Federal Constitution regarding freedom of assembly and so as to be in line with international norms on the same matter. . . . (emphasis added)”

Sadly, the excitement generated by this pledge quickly turned into disappointment and outrage when the provisions of the Peaceful Assembly Bill were first made known during its First Reading in Parliament. Instead of being in line with, it was substantially inconsistent with, international norms.

The most objectionable provision is the prohibition of an open air assembly which begins with a meeting at a specified place and consists of walking in a mass march or rally for the purpose of objecting to or advancing particular cause or causes, described rather mischievously as “street protest”. This is certainly contrary to the meaning of the freedom of assembly which has been interpreted in a number of jurisdictions to include assemblies in motion or processions. I will rely on six different jurisdictions to illustrate why on this single issue, the Bill is inconsistent with international norms.

The European Court of Human Rights interpreted assembly to include the holding of public meeting, protests and processions, demonstrations, marches, picketing, mass actions and rallies².

Lord Denning MR in the Court of Appeal case of Hubbard v Pitt³ in considering a case involving picketing said that:

“...Here we have to consider the right to demonstrate and the right to protest on matters of public concern. These are rights which it is in the public interest that individuals should possess; and, indeed, that they should exercise without impediment so long as no wrongful act is done. It is often the only means by which grievances can be brought to the knowledge of those in authority – at any rate with such impact as to gain a remedy. Our history is full of warnings against suppression of these rights. Most notable was the demonstration at St Peter’s Fields, Manchester, in 1819 in support of universal sufferage. The magistrates sought to stop it. Hundreds were killed and injured. Afterwards the Court of Common Council of London affirmed ‘the undoubted right of Englishmen to assemble together for the purpose of deliberating upon public grievances’. Such is the right of assembly. So also is the right to meet together, to go in procession, to demonstrate and to protest on matters of public concern... (my emphasis).“

In Hong Kong, the Court of Final Appeal in Leung Kwok Hung & Ors v Hong Kong Special Administrative Region⁴ found that peaceful assembly may consist of a procession and it recognised procession as an effective means of communication because it involves an expression of the views of the participants as they move from one place to another. Further, that the message the participants are seeking to communicate may have a wide exposure. Finally that a procession is a potent method of expression and is a common phenomenon in democratic societies including Hong Kong.

In Canada, Adams J in the Ontario Divisional Court case of AG of Ontario v Dieleman⁵ in considering the Canadian Charter of Rights and Freedom said that:

“If we do indeed have a right to speak, and to be heard, the right to assemble may be the only way of ensuring the advocacy of the right to speak. Mr. Justice Berger notes that: “Assemblies, parades and gatherings are often the only means that those without access to the media may have to bring their grievance to the attention of the public”.

In Australia, the Court of Appeal of the Northern Territory of Australia in Sally Ann Denise Watson and Vaughan Lewis Williams v Robin Laurence Trenerry⁶ held that peaceful demonstration and protests (whether by way of procession or assembly) are the lawful exercise of freedoms and that a peaceful demonstration or protest, whether by assembly or procession in a street is nowadays accepted by members of the community as a safety valve for the community and potentially at least as an agent for change and for the good.

Interestingly, in Zimbabwe, the Supreme Court of Zimbabwe in Re Munhumeso and Others⁷ recognised the right to freedom of assembly covers static meetings as well as public processions. The Court further held that:

“A procession, which is but an assembly in motion, is by its very nature a highly effective means of communication, and one not provided by other media. It stimulates public attention and discussion of the opinion addressed. The public is brought into direct contact with those expressing the opinion…”

In short, there is a consensus of worldwide judicial opinion that:

(i) assemblies in motion are a more effective means of expression than static assemblies;
(ii) the people are entitled to use the most effective legitimate means to express their views and grievances;
(iii) preventing them from doing so is simply another mode of repressing dissent.

The extent to which the Peaceful Assembly Bill deviates from international norms can be judged by the United Nations Press Release of 7 December 2011. I confine myself to quoting one paragraph:

“The Special Rapporteur on the right to freedom of expression, Frank La Rue, urged the Government of Malaysia to seriously reconsider the adoption of the bill, which would contravene international human rights standards. “The ability of all individuals to express themselves freely, including in the form of peaceful assemblies, is a litmus test for the level of democracy in any country,” he said recalling a previous call of concern on the Government’s response to the Bersih 2.0 demonstrations … .”

The Malaysian Bar Council did not spare any effort to change the mind of the Government during the Parliamentary debate in the Lower House and after having exhausted all other avenues, it decided to have the Walk for Freedom to demonstrate that an assembly in motion can be conducted in a peaceful manner with minimal disruption to traffic with the assistance of the police.

With more than one thousand members of the Bar, civil society and public, the Bar Council submitted its alternative Bill which it drafted in three days with the aim of an alternative Bill consistent with international norms.

Whilst it would appear that this Bill will be passed in the Senate, the Bar remains hopeful that the Government will nonetheless consider amendments to the Bill either before or after it comes into force. The Bar is continuing with its engagement with the Honourable Attorney General and the Government to pursue such amendments.

Seksualiti Merdeka

Seksualiti Merdeka is an annual sexuality rights festival held in Kuala Lumpur for Malaysian citizens who are denied the rights to identity and self-determination. This festival has featured workshops, poetry, music, dance, interactive installations and film screenings to generate discussion, raise awareness, and promote respect for sexual and gender diversity.

It has been held since 2008 without attracting any controversy. In 2011, it appeared, at least in the eyes of the Government, to have morphed into a promotion of promiscuity and same sex marriage.

The fact that the event was for people in the community to share their experiences of discrimination were forgotten. Here, in the name of religion (and this argument was advanced by more than one faith), any intellectual discourse was muzzled. The police used the force of law to prohibit the event. In short, bigotry triumphed.

Challenges and Hope

It would appear that the biggest challenge today is to navigate intellectual discourse in a calm, peaceful, rational, reasonable and considered manner. That Malaysians are capable of this is apparent from the past five decades of stability and prosperity, based largely on mutual respect and basic human decency. Whether they will be allowed to do so without interference and oppression is less clear.

The Honourable Prime Minister in his Malaysia Day speech promised,

“Be confident that it is a strength and not a weakness for us to place our trust in the Malaysian people’s intelligence to make decisions that will shape the path of their own future. . . .

It is absolutely clear that the steps I just announced are none other than early initiatives of an organised and graceful political transformation. It stands as a crucial and much needed complement to the initiatives of economic transformation and public presentation which the government has outlined and implemented for over two years in the effort to pioneer a modern and progressive nation. . . .

… I wish to emphasise that free of any suspicion and doubt, the Malaysia that we all dream of and are in the process of creating is a Malaysia that practices [sic] a functional and inclusive democracy where public peace and prosperity is preserved in accordance with the supremacy of the Constitution, rule of law and respect for basic human rights and individual rights.”

Our other challenge is to assist the Honourable Prime Minister in ensuring that he does not stray from his promised path towards a modern and progressive nation, which aspiration any Malaysian would unhesitatingly share and support.

The people of Malaysia must continue in hope and strive by engagement and education to remind and convince the Government that it must fulfil its obligations under the Universal Declaration of Human Rights and the Federal Constitution, and its pledges made on its behalf by the Honourable Prime Minister.

Thank you very much.

¹www.un.org/en/events/humanrightsday/2011/.

²http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/47/47i.pdf.

³[1976] QB 142.

⁴[2005] 3 HKLRD 164.

⁵[1994] O.J. No. 1864.

⁶[1998] Ntsc 22; (1998) 122 Ntr 1 (26 May 1998).

⁷[1995] (2) BCLR 125 (C).

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