THE COURTS AND THE ENFORCEMENT OF HUMAN RIGHTS
| Author | Ambiga SREENEVASAN1 LLB (Exeter); Barrister-at-law (non-practising) (Gray's Inn); Advocate and Solicitor (High Court in Malaya). DING Jo-Ann LLB (Manchester), MSt in International Human Rights Law (Oxford); Barrister-at-law (non-practising) (Lincoln's Inn). 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, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people …[2] 1 Former President of the Malaysian Bar (2007–2009), former chairperson and co-chairperson of the Coalition for Clean and Fair Elections (Bersih 2.0) (2010–2013), former president of the National Human Rights Society (Hakam) (2014–2018), Commissioner of the International Commission of Jurists. 2 From the Preamble to the Universal Declaration of Human Rights (10 December 1948). |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
This article examines how the Malaysian courts have dealt with substantive human rights issues in the cases that have come before them, focusing particularly on the last ten years. It highlights cases where the courts demonstrated greater willingness to review executive action and parliamentary legislation and test them against constitutional provisions that protect fundamental liberties such as the right to life, and freedom of expression, association and assembly. It also looks at cases which have taken a less flexible approach on these issues. The article also touches on the issues of access to justice, locus standi and justiciability of cases involving human rights issues before the Malaysian courts.
1 Human rights are inalienable and they belong to every human being. The Universal Declaration of Human Rights (“UDHR”) was adopted by the United Nations (“UN”) General Assembly on 10 December 1948. The 10th of December is now celebrated the world over as “Human Rights Day”.
2 The UDHR was born out of the atrocities of the Second World War by the recognition of nations that it was necessary to articulate a set of values that uphold the rights and dignity of man. This idea was not a new one and had been expressed in documents such as the French “Declaration of the Rights of Man and of the Citizen”, which was crafted amidst the French Revolution on the basis that “men are born and remain free and equal in rights”. Likewise, the US Declaration of Independence states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights ….”
3 Since the UDHR, several core UN instruments have emerged such as the International Convention on the Elimination of All Forms of Racial Discrimination3 (“ICERD”) in 1965, the International Covenant on Civil and Political Rights4 in 1966 and the International Covenant on Economic, Social and Cultural Rights5 in 1966. There are also other core declarations involving human rights, which are not legally binding.
4 Human rights instruments merely articulate and recognise that human rights exist; they do not create them.
5 Malaysia has had a rich history of co-operation with the UN. It was also an active member of the Commission on Human Rights for three terms, up till the time the Commission was dissolved and the Human Rights Council (“HRC”) was set up. Malaysia has been a member of the HRC from 2006–2009 and 2010–2013.
6 Malaysia's Federal Constitution protects fundamental liberties such as the right to life, equality, freedom of expression, association and assembly, and freedom of religion.6 The protected fundamental liberties echo some of the provisions found in the UDHR. The Malaysian Constitution, however, allows for Parliament to impose restrictions on certain freedoms as it deems necessary in the interests of, inter alia, national security, public order or public morality.7
7 These fundamental liberties are clearly recognised by the Malaysian government who in the “Aide Memoire” dated 3 May 2010 in support of Malaysia's bid for membership of the HRC in 2010 stated:8
At the national level, Malaysia is actively seeking to promote and protect human rights through efforts in various fields.
Since independence in 1957, our efforts to promote and protect human rights have been reflected in our laws and regulations. These include:
Federal Constitution of Malaysia – provisions under Part II of the Constitution forms the basis for the promotion and protection of human rights … Articles 5 to 13 further reinforce the rights of personal liberty; prohibition against slavery and forced labour; protection against retrospective criminal laws and repeated trials; equal protection under the law; freedom of movement; rights to speech, assembly and association; freedom of religion; rights in respect of education and rights to property.
8 There is no doubt whatsoever that the supreme law of the land, the Federal Constitution, provides the underpinnings for human rights in Malaysia.
9 When the UDHR was signed in 1948, the territories which now make up Malaysia were under British colonial rule. Malaya (Peninsular Malaysia) achieved independence in 1957 and the nation state Malaysia was born in 1963.
10 The British left behind a slew of draconian laws, which include the Sedition Act 1948,9 official secrets laws, and preventive detention laws which were later consolidated in the Internal Security Act 1960 (“ISA”).10
11 Malaysia also enacted draconian laws of its own which required newspapers to obtain government licences to operate,11 curbed student political participation12 and made it illegal to assemble in public without a police permit.13 It extended the application of the death penalty and made it a mandatory punishment for drug trafficking in 1983.14
12 The advent of the Internet was accompanied by repressive laws specific to the online environment. It is criminal to post offensive content online with the intent of merely annoying others15 while an amendment to the Evidence Act 195016 presumes that any online publication with a person's name or photograph on it, or that originated from his or her computer, was published by that person.
13 Another series of repressive laws were enacted in the last years of Prime Minister Najib Razak's leadership, following revelations of massive corruption in the now infamous sovereign wealth fund 1Malaysia Development Berhad. Amongst these laws was the National Security Council Act 201617 which gives unfettered powers to a national security council headed by the prime minister and allows him or her to make declarations establishing “security areas”. Much like an emergency
14 Many have suffered under these laws. Government critics have been detained without trial, including in 1987, when over 100 opposition leaders and activists were arrested overnight under the ISA.19 Three newspapers had their printing licences revoked at the same time, putting thousands of jobs at risk.20
15 Following former Deputy Prime Minister Anwar Ibrahim's arrest in 1998, protesters faced violent crackdowns by the riot police who used tear gas and water cannons against them. Similar tactics were used against protesters at the Bersih 2.0 rallies in 2011 and 2012, which called for electoral reform. A public inquiry by the Human Rights Commission of Malaysia (“SUHAKAM”) on the 2012 rally found that the police used disproportionate force and had misconducted themselves during the rally. Protesters testified that they were punched, strangled, slapped, kicked and stomped on by police personnel.
16 Since then, however, the Peaceful Assembly Act 201221 has been passed. Though not ideal, it was a marked improvement on the then existing legislation.
17 Malaysia was waking up to a new scenario of an empowered public, intent on their voices being heard. This finally resulted in the historic, peaceful change of government in May 2018, despite the numerous challenges faced by the people in the electoral process.
18 Having rights would be meaningless unless there is an accessible avenue to enforce them. All persons who have legitimate grievances must have access to a system of adjudication that can provide them with an effective remedy.
19 Human rights abuses must be investigated and appropriate redress provided, failing which the fundamental liberties under the Federal Constitution will become meaningless.
20 Malaysia has seen an increase in the number of public interest litigation cases, including class actions before the courts, and almost all of them involve some aspect of human rights:22
Public interest litigation is usually entertained by a court for the purpose of redressing public injury, enforcing public duty, protecting social rights and vindicating public interest. The real purpose of entertaining such application is the vindication of the rule of law, effective access to justice to the economically weaker class and meaningful realisation of the fundamental rights …
21 Closely linked to public interest litigation are the issues of locus standi and justiciability. These issues are frequently raised against litigants which often thwart access to the courts.
22 One of the earliest and most prominent public interest cases was the 1988 case, Government of Malaysia v Lim Kit Siang23 (“Lim Kit Siang”), involving the former Opposition leader. Lim opposed the privatisation of the North/South Highway project to United Engineers (M) Bhd (“UEM”), alleging that there were improprieties in the tender exercise and a conflict of interest.
23 In his capacity as a member of Parliament, Lim filed suit for a declaration that the Government's letter of intent issued to UEM in respect of the North/South Highway contract was invalid and sought an interim injunction to restrain UEM from signing the contract. An ex parte interim injunction was refused by the High Court, but on appeal to the then Supreme Court, the interim injunction was granted with liberty to apply.
24 UEM then applied to set aside the injunction, inter alia, on the grounds that Lim had no locus standi. This application failed at the High Court but succeeded in the then Supreme Court, where a majority of the panel took a restricted view of cause of action and locus standi.
25 Two strong dissenting judgments, however, were delivered by George Seah SCJ and Eusoffe Abdoolcader SCJ. Abdoolcader SCJ held that to deny locus standi in this case would be a “retrograde step”.24
26 The threshold locus...
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