This article explores some thoughts on the psychological, legal and political aspect of human rights implementation in
The Nature of Human Rights Discourse
I shall begin with a not too unfamiliar scenario: a police officer in star-studded blue haranguing a crowd to disperse from a certain location in the city of
However the scenario mentioned tells us something further about what goes on in the mind of that police officer. And whether he knew it or not, his thought processes were like that of a legal positivist. To him, years of training at the police academy had taught him that this was what the law says, and rightly or wrongly he had to implement it regardless of any moral connotations.
But the thought processes of the demonstrators were very different. They were trained not in the academies to think about the laws like that. They were human rights defenders who had specific concerns to voice out and the law that prevented them from so doing was a gross violation of their human rights.
From that little analysis of thought processes we can draw some reasonable conclusions. That the stance taken by the demonstrators effectively takes human rights out of the realm of legal positivism, but still maintains every sense of rightness in accordance with international human rights norms and practices. It also suggests the special role human rights advocacy must play in the defense of universal human rights principles and in the interest of good governance and administration in our country.
The reality of applying for a police permit to do that is not good governance as firstly it paints a picture that Malaysians are not a mature lot to gather peacefully on important issues. Secondly it gives the unwelcome impression that parties, the organisers and the police are not moving towards a cooperative model in regulating assemblies, without need for a permit as practiced in some foreign jurisdictions. Thirdly, governments are elected to protect people’s right, not to suppress them.
Even if we are no expert in John Locke’s theory of natural rights or can’t understand the fine points of the modern human rights movement, the authorities are there to serve the people. So the authority must initiate, not the people in this regard. The first step in the rights discourse is therefore for the authorities to recognise that a right to peaceful assembly is a fundamental human right and to trust others to gather peacefully. They should recognise that freedom of assembly is the peoples’ right; that no single individual, entity or body can claim exclusivity over others. They should not make things complicated and create unnecessary tension through large deployment of FRUs or use teargas and water canons. There could be saving so much in terms of public fund and taxpayers’ money if all this could be done. And there is no need to arrest if nobody is provoking anybody. There is no need to arrest the lawyers of those arrested as they are important stakeholders to ensure justice and fair play are dispensed with.
The question is will the authorities listen?
The Positivist Discourse and the problems it posed to Human Rights Implementation.
The Federal Court in Mohamad Ezam Mohd Noor v Ketua Polis Negara & other appeals (2002) 4 CLJ 309 (FC) has decided that the Universal Declaration of Human Rights (UDHR) has no force of law nor is it binding on Malaysia. Her Ladyship Siti Norma Yaakob FCJ ( as she then was) held
“(at page 386) This begs the question as to whether acceptance of the 1948 Declaration as a non legally binding instrument has changed by virtue of s4(4) of the Human Rights Commission of Malaysia Act 1999. In my opinion the status and the weight to be given to the 1948 Declaration by our courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements of treaties.
Since such principles are only declaratory in nature, they do not I consider, have the force of law or binding on Member States”
At first glance of the above judicial reasoning, we may think that if human rights laws are not codified into our national laws, there will always be a problem to its implementation in our country. We may be led to think that human rights need that element of legal enforceability; otherwise human rights will remain pure fiction.
Added to this concern will be that inexorable challenge from that school of lawyers inclined to adopt a legal-positivist approach to say that the only rights are those that are legally enforceable. They urge the courts not to look at the declarations, instruments, protocols, conventions, and treaties which have not been ratified, acceded or introduced into our domestic laws and harmonised with our legal system. It sounds desirable that human rights should be legally enforceable so as to ensure that they are clear and precise. However this view also misrepresents the character and distorts the true picture of human rights and its advocacy. The very concept of human rights suggests that they should not assume a character of legal enforceability alone. To do so could have dangerous implications to human rights.
If the entire corpus of human rights is legally enforceable we would be appealing only to legal rights instead, and would not need to appeal to human rights. If legal positivism were true there is no way to criticise unjust legal systems and unjust laws. It is vital that human rights have to stand outside that system of legal enforceability (SLE) to launch its barrage of criticism in order to be rights effective. To stand inside SLE would be appealing to legal rights instead and the consequences of doing that would be some steps backward for human rights and its advocacy in a many instances. .
This point cannot be overemphasised if we were to scrutinise the position taken by Suhakam, the highest official human rights watchdog in the country, recently, in relation to the recent mass rally and protest calling for the abolishment of the Internal Security Act (ISA) which allows for indefinite executive detention without trial. It also underscores how the character of human rights advocacy had been misconstrued and not fully appreciated when human rights are placed at the same level as legal rights enforceability without considering the underlining nuances of its implementation. .
Suhakam, did just that recently by standing inside SLE in the face of strong objections from 42 non-governmental organisations (NGOs), which led to their eventual boycott of the Malaysian Human Rights Day.
The position taken to stand inside SLE had resulted in that infamous permit issue sinking deep into the right consciousness of Suhakam. As gathered from an article in the Sun dated 9th Sept 2009, this Human Rights Commission did not send a monitoring team to the I.S.A. rally on 1st August 2009 as one of the grounds was that the organisers did not obtain a permit. It even passed a dualistic kind of judgement and considered the assembly as illegal. The chairman of Suhakam was quoted as saying "Suhakam cannot be misconstrued as participating in illegal demonstrations and if we were there even to monitor, we would have also been arrested" Well, my point is this: resurrecting the ghost of that permit issue will be a reality if we choose to stand inside SLE. And the proposition on offer about breaking the law is unattractive when it comes to defence of fundamental human rights. Monitoring as an important arm of the engagement and human rights advocacy process is an important form of such defence.
Devastating effects in dismissing human rights nuances
The devastating part is how can Suhakam reconcile its rights position now, considering just about three years back the report of its Public Inquiry into the Incident at KLCC popularly dubbed “The Bloody Sunday Incident” (KLCC Report) recommended repeal to a substantial number of sub-sections of section 27 and also section 27A of the Police Act, thereby removing the need to apply for any licence or permit to hold a peaceful assembly.
It will be very difficult indeed, if we look into two particular paragraphs of the KLCC report quoted below to shore up the strong human rights position taken by Suhakam then:
Para 35 “ At the domestic level, Section 4 of the Human Rights Commission of Malaysia Act 1999 makes mention of the UDHR stating “ regard shall be had to the Universal Declaration of Human Rights” so long as it is not inconsistent with the Federal Constitution”
Para 36 “ Therefore although Malaysia is not a party to the major international human rights instruments such as the ICCPR, CAT, provisions of which will be cited at length throughout this report, the fact that there are strong arguments that the UDHR has been accorded the level of jus cogens, the rights which are contained in the UDHR which are also similarly contained in these international human rights treaties, particularly to right to freedom of assembly, should be put on the same level and accorded the same status of customary international law.”
The Balance of Power Discourse.
The balance of power position involves the ebb and flow of the political process. Implementation of human rights in
The reality is no one can isolate himself or herself, even if he or she chooses to. This brings into sharp focus the role of civil society, human rights organizations, non-governmental organisations, and interest groups to lobby their elected representatives to put up specific human rights agenda for discussion, consultation and adoption. The Human Rights lobbying base, should be widened to include a large segment of the Malaysian populace. Once there is strength in numbers, human rights consciousness could be addressed collectively, thereby more effectively.
At the same time the rudiments of training and education should be drummed up to widen the knowledge base so as to increase the level of right awareness and understand their importance fully.
There is a need to realise that the strength of a lobby group can effectively translate into popular vote. Lobbying in the
In this regard a wider proliferation of issue-based groups could mean more engagement taking place on issues affecting ordinary Malaysians.
The other alternative would be to remain apathetic like the ordinary apolitical Japanese or German in the period of the last War, and allow people hardly constituting a minute fraction of the entire populace to decide and craft policies on how they should live, think, and behave. As history books were to later show us, the result of this was an unprecedented outrage to the conscience of humankind.
Conclusion
Prepared & presented at KDU Law Day on 01.10.2009 by:
Roger Chan Weng Keng
Deputy Chair
Environmental & Humanities Committee