http://www.mysinchew.com/node/19687?tid=14

For Suhakam, The Waiting Continues...
(By MOHSIN ABDULLAH/ MySinchew) 2009-01-04 00:00

This year our very own human rights commission Suhakam will be 10 years old.
The folks in Suhakam should be rejoicing. So must we? But both of us (them
and us) are not. The reason being Suhakam want and need, to put it mildly,
extra "cloud".

Suhakam as we recall, was established in Parliament under the Human Rights
Commission of Malaysia Act 1999. Gazetted on 09/09/99. It's inaugural
meeting was on 24 April 2000 under the chairmanship of Musa Hitam, then Tan
Sri now Tun.

Right from the beginning, the commission was viewed rather sceptically by
many. For starters, it was formed by the government. The Mahathir
administration then was under fire locally and abroad for alleged human
rights "abuses". That was during the height of the Reformasi era of
1998/1999. Appointing a former Deputy PM as chairman only helped to provide
detractors "bullets to gun down" Suhakam. And it was perceived as a "smoke
screen" and nothing more than a "PR exercise". To make the government of the
day looked good. Worst, critics called Suhakam a "toothless tiger".

"Making Suhakam a real Malayan tiger should be
part of the PM's reforms policy before he takes a
bow in March."

Still to be fair, it must be admitted that the staff of Suhakam then ( as
now) worked hard. Suhakam 's commissioners past and present are anything but
toothless. Example...after the accusation against police for alleged
brutality at a pro Reformasi gathering along the Kesas highway in 1999 an
enquiry was held. It was a first for Malaysia as far as human rights matters
were concerned. And the presiding commissioners did not minced words and
even chided high ranking police officers.

Still the "toothless tiger' tag lingers on till this day. Despite strong
stand on numerous issues and policies. Like urging the government to repeal
the ISA. Recently Suhakam came out with a statement that the Jerit campaign
should have been allowed, a stand which is clearly contrary to the one
adopted by the police. Suhakam's policy on public assemblies is well known
and the commission even made several proposals to the government way back in
2000 to solve this long standing issue.

It's not surprising that some quarters in government and the BN are accusing
Suhakam as being "anti government". But folks with a penchant for
"conspiracy theory" see that as an attempt to "pull wool over the eyes" of
the public. A sandiwara.

Obviously it's not the question of Suhakam "shouting" but rather the
government taking heed. The present situation now is making the government
look bad.

Suhakam wants the very act on which it was set up amended to make it more
"authoritative". That should be the first step. Making Suhakam a real
Malayan tiger should be part of the PM's reforms policy before he takes a
bow in March.

In 2000 when I was privileged to have worked for theSun newspaper, I wrote
an article saying the onus was on the Mahathir administration to make
Suhakam truly effective in safe guarding human rights of all, Malaysians and
non Malaysian alike.

Now I stand accused of being an old man who is fond of repeating himself. I
don't mind. I say the same thing to the current administration. The onus is
on you to do what the former administration didn't.
____

http://www.malaysianbar.org.my/human_rights/speech_by_the_president_malaysian
_bar_on_the_60th_anniversary_of_the_udhr.html

Malaysian Bar President's speech on the 60th anniversary of the UDHR

Contributed by Ambiga Sreenevasan
Friday, 02 January 2009 04:07pm

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.

The Declaration was drafted after the world witnessed the horrors of
genocide in World War II. It has since then been the source of inspiration
to human rights movements the world over. It is a simple yet often neglected
ideal that every human being in this world is entitled to be treated fairly,
equally and with dignity. Yet we have seen the atrocities of World War II
repeated time and again till today.


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:


"an invitation to look at the Declaration if one is disposed to do so,
consider the principles stated therein and be persuaded by them if need be.
Beyond that one is not obliged or compelled to adhere to them."


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 Rights

What 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.

Conclusion

Nehru said, in his famous "Tryst with Destiny" speech, which is of universal
application:


"The service of India (we can substitute with "all nations") means the
service of the millions who suffer. It means the ending of poverty and
ignorance and disease and inequality of opportunity. The ambition of the
greatest man of our generation has been to wipe every tear from every eye.
That may be beyond us, but as long as there are tears and suffering, so long
our work will not be over."


Today, as we commemorate the 60th anniversary of the UNDHR, our goal must be
to "wipe every tear from every eye". The Universal Declaration of Human
Rights tells us how.

Dato' Ambiga Sreenevasan
17th December 2008
----------------------------------------------------------------------
1Parliamentary Debates, Dewan Rakyat (21.6.1960), p. 1189
2Parliamentary Debates, Dewan Rakyat (22.6.1960), p. 1354
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