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Sinchew:For Suhakam, the waiting continues

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  • Y.W.Loke
    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
    Message 1 of 1 , Jan 4 5:19 AM
      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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