Human rights and criminal justice

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It’s not just the ISA that needs to be repealed. It is time to set up a law reform commission to look into and update outdated criminal laws, writes Hamid Ibrahim.

The United Nations resolved that member countries should establish  their own Human Rights Commissions. As a result of this resolution the Malaysian Human Rights Commission Act was passed in 1999.  But if one looks at the Act closely one would find a lot of discrepancies.  Section 2 the Malaysian Act defines ‘human rights’ thus:

    “human rights refers to fundamental liberties as enshrined in Part II of the Federal Constitution.  

On the contrary, The Indian Human Rights Act 1993, s.2 defines ‘human rights’ as follows:
    “(d)… “human rights” means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.


Fundamental liberties provisions amended

Articles 5 to 13 contain liberty provisions.  Almost all these Fundamental Liberty  provisions have been amended.

Tun Dr. Mohd Suffian, in an article in the Current Law Journal (1983) that  Part II, dealing with Fundamental Liberties guarantees the citizen – and in many cases the non-citizen also – certain political and legal rights, in some cases subject to exceptions. Some of these political and legal rights are:

(1)    the right of the citizen to live anywhere in the country, the right to return, the right not to be banished;
(2)    the right of a person not to be deprived of life or personal liberty save in accordance with law;
(3)    the right to habeas corpus;
(4)    the right to live as a free person not in slavery;
(5)    protection against retrospective criminal laws and repeated trials;
(6)    equality before the law and the equal protection of the law;
(7)    freedom of speech, assembly and association;
(8)    freedom of religion, though Islam is the religion of the Federation;
(9)    the right not to be deprived of one’s property save in accordance with law and the right to compensation where one’s property had been compulsorily acquired or used; and
(10)    the right of the citizen not to be discriminated against in public education on the ground only of religion, race, descent, or place of birth.

“All these rights, and they are human rights, are constitutionally protected rights and they have been written into the constitution to emphasise their importance, for being in the constitution they are more difficult to abridge than rights protected by ordinary law.

“These rights are in the main to secure legal justice. But we on the Commission know that equally important is the need to secure for man everywhere another kind of justice, namely political, economic and social justice – a need which constantly exercises our mind – so that man can live a full life with enough to support himself and his family in dignity and to provide opportunities for his children and generally free from want and fear.”

Human Rights concepts, by Justice C.G. Weeramantry, who was the Vice President of the World Court in the Hague.

He wrote:

“All this way reinforced by legal personnel -judges and lawyers – who came from an affluent background and were steeped in the legal learning of affluent societies. Even when colonial peoples won their independence and manned their own legal system, they maintained these attitudes and the structures, procedures and concepts that went with them.  The result of all of this was that the law as it existed in the field was very different from the law as it was depicted in the books.

The teacher of human rights needs therefore to stress to his students the principle set out in Article 2 of the General Assembly Resolution, namely, that all human being have a responsibility for development, individually and collectively.  It is part of one’s duty to one’s community which alone, in the language of Article 2, ‘can ensure the free and complete fulfillment of the human being’. Especially with influential audiences such as law enforcement officials, bureaucrats and teachers, it is important that this aspect be stressed, for they are under a special duty to act affirmatively to further this right to development. One cannot pretend to be a promoter of human rights if one ignores this duty to promote actively the right to development.

States’ duty

In achieving this goal of development, States have a duty to undertake at the national level all necessary measures for the realisation of the right to development, and are under a duty to unsure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment, and their fair distribution of income. It is also important that effective measures should be undertaken to ensure that women have an active role in the development process.

Denigrating factors

Take the bureaucracy. They are there to serve the people but they often seek to build little empires of power for themselves. They are often oppressors of the people, not so much because they deliberate set out to be so but because they have a sense of comradeship, solidarity and self-importance which can make them overlook the needs of the people they should be serving. Bureaucratic abuse of power needs to be watched in every jurisdiction, and the most effective agencies to do this are human rights workers. The most effective way to prevent this is by spreading an awareness of their rights among the populations through human rights teaching.

Lawyers’ role in human rights

In this regard it is strange but true that those who ought to be the leaders in the dissemination of human rights knowledge, namely the legal fraternity, are often rather ill-informed about human rights. This is the result of the black-letter legal tradition which has dominated legal education in many jurisdictions. There is still a widespread feeling in the legal community that black-letter law is the only proper law worthy of lawyers’ study, and that philosophical and aspirational thought in relation to such matters as rights and duties may be appropriate to other studies which are strictly legal.

Judges’ role in developing human rights

It may seem strange also that we should have to talk about teaching human rights to judges. Unfortunately it so happens that many members of the judiciary – particularly those who are more senior – had their legal education, and indeed their legal practice, in days when human rights’ learning was not a subject of study.  The traditional view a generation ago was that law of property so-called was the lawyer’s proper sphere of work and that such matter as human rights pertained more to the field of morality and aspiration than of law. Today, the discipline of human rights is directly relevant to the work of every lawyer and judge, and there are statutes in most countries which translate human rights principles into the law of the land.

When I was a young lawyer I would have hesitated to cite the Universal Declaration of Human Rights to a judge, for fear that I might be told it was an aspirational and not a legal document. Today, the status of the Universal Declaration of  Human Rights is such that is it universally looked upon as laying down a minimum universally recognised set of norms by which all laws can be tested.  Moreover, judges are engaged in the process of developing the law. They do not merely decide cases in the light of existing law.

The US Supreme Court plays a notable role in this regard, and in many other jurisdictions the judges do likewise. For example, the Indian Supreme Court has given much leadership in developing new human rights-based remedies to assist the average citizen. In other words, the judge today has an important role in advancing human rights, and judges should be conscious of this and should be equipped to discharge this role adequately.  

Crime and correction

An important practical way of seeking congruence with traditional culture comes from the area of crime and correction. In this area, Western-based concepts of imprisonment are proving inadequate in many societies to provide the element of correction and reintegration into society to which traditional cultures attached great importance.

Each Nation must mould and adapt the ideas and concepts of community-based corrections to the traditions of it own society. The mere acceptance of the imprisonment notion of Western penal jurisprudence, isolated as that concept is from the community, is often of negative value.  Extramural penal employment, techniques of rehabilitation, reconciliation, and acceptance into the community, conciliation with the victim and the victim’s family, suspended sentences, community service, public participation in criminal justice administration, reassurances for the elderly, citizen crime-prevention programmes, citizen patrols, advisory services, community-police workshops, involvement of traditional local organisations and village communities – all these areas offer enormous opportunities for the incorporation of  traditional values.

Third World situations

It is necessary, however, to draw special attention to the manner in which, in many Third World situations, the established legal order reinforces iniquity in a manner not often realised by the well-meaning participants in the justice system. This is indeed the condition in which the majority of the world’s population finds itself and is one of the great human rights issues of our time to which scarcely any attention has been paid.

Justice for some is not justice for all. The formal structures of Third World legal systems often succeed in achieving the one, but fail signally in achieving the other.  Some of the factors resulting in this situation are:

(a)Members of legal professions and judiciaries are dawn from the upper crust of such societies and tend naturally to reflect the values and interests of that class.

(b)These persons are, by and large, oriented to Western value systems. Their  training as lawyers has largely been in Western countries or in Western-oriented law schools. There has been an altogether insufficient development of a jurisprudence suited for Third World conditions. These persons tend also to be urban oriented, whereas the vast mass of the populations of Third World countries are of an agrarian background, with needs which have traditionally been met through a different value system.

(c)Court structures have a formal and expensive nature. The rich landowner  has traditionally used these expensive structures to deprive the poor peasant of his land. Appeals all the way up the hierarchy of courts – if need be, to the Privy Council in colonial days or to the highest court of appeal today – will keep his poor adversary at bay.

(d)Legal rules are oriented to suit concepts of property. This is the basis of  the legal principles, both civil and criminal, which constitute the legal systems of these countries.

(e) (Not applicable)

(f)Judiciaries and legal systems are being subordinated to political power – a phenomenon which is occurring increasingly today. The traditional insulations of judiciaries from political power have been largely eroded, if, as in some countries, they have not altogether vanished. The courts, once at least theoretical symbols of the individual’s independence, are in many countries becoming the very instruments by which human rights denials are buttressed and enforced.

(g)Legal professions are being used for anti-social purpose. This occurs in all countries, as for example when legal expertise is employed to bind the poor borrower in a hire purchase or standard form contract, or in the use of legal expertise for tax avoidance. In affluent countries there may well be counter action through other lawyers employed by consumer groups or other interest. In Third World countries such prostitution of legal expertise tends to occur without any effective counterbalance.

(h)Legal professions have a traditionally self-centered nature. In the Third World. As elsewhere, the law is one of the principal highroads to fame and fortune. The busy lawyer, engrossed in his work, chases the phantom of professional success, removing himself progressively from the socially oriented issues which ought to engage his attention as a leader of his community. At the peak of his power and influence he is often phenomenally removed from the real causes and concerns of his people.

Such factors, as I have said, exist in varying degrees in nearly all legal systems. For the majority of mankind legal systems can sometimes be obstacles rather than aids on the pathway to human rights.

It is well for lawyers and judges, who so often speak and write of human rights, to turn the spotlight inwards upon themselves. They will from time to time find themselves cast in the role of denigrators rather than upholders of human rights.”

(*Justice C.G. Weeramantry in Justice Without Frontiers: Furthering Human Rights  1997 Vol.1 – Kluwer Law International- The Hague. Justice Weeramantry was the Vice President of the International Court of Justice at the Hague)


The United Nations Charter
 
In 1948, the Universal Declaration of Human Rights Charter was adopted as a “common standard of achievement for all peoples and all nations”. Today, the UDHR has been supplemented by a number of international instruments. Malaysia is a signatory to the UNDHR since 1957

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Of all major international human rights instruments, Malaysia has ratified only five namely
 
•    Convention on the Elimination of All Forms of Discrimination Against Women
•    Convention on the Rights of the Child
•    Convention on the Nationality of Married Women
•    Convention on the Prevention and Punishment of the Crime of Genocide
•    Supplementary Convention on  the Abolishment of Slavery, the Slave Trade and Institutions and Practices similar to Slavery
 
Malaysia has yet to ratify two very important Instruments namely
 
•    International Covenant on Economic, Social and Cultural Rights (ICESCR)
•    International Covenant on Civil and Political Rights  (ICCPR)
 
Both ICESCR and ICCPR came into effect in 1976.  Calls for ratification has been made by numerous quarters including the parliamentary opposition leader, who moved a parliamentary motion in 1976 and by the Malaysia Human Rights Commission in its year 2000 Annual Report.
 
As of 2002, there were 192 countries in the United Nations – ratified ICESCR, 144 for ICCPR  142.  The Malaysian government  should take steps to ratify the ICESCR and ICCPR and ensure domestic law compliance with the UN Conventions.  In this age of globalisation, international law on human rights is becoming increasingly relevant.  Ratifying these two covenants will promote human rights and avoid the recurring violation of fundamental liberties in Malaysia.

Detention without trial is a gross violation of human rights

Arbitrary arrests and detentions without trial under laws which were formulated to serve a real situation of emergency many decades ago only disgrace Malaysia in the eyes of the world. Detention without trial is a gross human rights violation.

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It violates Article 9, 10 and 11 of the Universal Declaration of Human Rights 1948 and Article 8 of the covenant on Civil and Political Rights and the Federal Constitution which guarantees the process and security of persons.


Law Reform Commission of Malaysia

In 2008 Malaysia celebrated the 50th anniversary of Independence.  During these 50 years, the Federal Constitution had been mutilated through amendments nearly 50 times.  Another irony is that the Reid Commission Report –  the Document of Destiny – was formulated by Foreign Judges. There was not have a single Malaysian member in the Reid Commission: all the five members of the Commission were foreign Judges.

Therefore it is proposed that a Constitutional Law Reform Commission should be established consisting of Malaysians of various denominations, experts in constitutional affairs. In 1957, Malaya did not have persons with constitutional expertise.  Today the story is different.  There are more than 100 experts on Constitutional Law. Appoint a Law Reform Commission to review the Federal Constitution comprising local legal luminaries.

It is clear from the above that the three major criminal laws – the Evidence Act , The Criminal Procedure Code and the Penal Code – were imported from India during the 19th century. We are now in the 2lst Century. In this over hundred-year period the laws have been changed/reformed in the United Kingdom, Australia, the United States and the Republic of India.  Therefore, the time is more than ripe for a Law Reform Commission to be formed to look into these three major outdated criminal laws with a view to modernising them.

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Almost all democratic countries have set up Law Reform Commissions whose function it is to look into in detail each and every old statute and to improve and reform and repeal it where necessary.

Denning’s Research Centre of Malaysia recommends that:

•    The 19th Century Statutes – the Evidence Act, 1950, the Criminal Procedure Code and  the  Penal Code be amended and improved in line with the 2lst century conditions.  Many Commonwealth countries, e.g. the United Kingdom, Australia, Canada and India have already amended their laws in line with modern-day conditions.
•    Part II of the Federal Constitution on Fundamental Liberties should be amended to  bring it back to its original state in 1957.
•    Malaysia should ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR)
•    Malaysia should ratify the International Covenant on Civil and Political Rights (ICCPR)
•    Malaysia should ratify The Convention against Torture and other Cruel, Inhuman or Degrading treatment
•    Malaysia should legislate the right to information and privacy laws without further delay.
•    Repeal the Internal Security Act, 1960 and the Emergency Regulations which are still in force -and which allow a state of emergency to be declared at any time.  This is most dangerous in a Democracy: (a) the Public Order (Preservation) Ordinance (1958),  (b) the Official Secrets Act 1972 and  (c) the Essential (Security Cases) Amendments Regulations (1975).  The first Prime Minister, Tunku Abdul Rahman, promised in Parliament that the ISA was meant for the communists and not  the politicians.

Professor Hamid Ibrahim is the Executive Director of the Denning’s Research Centre, Malaysia.

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