CHAPTER 11CHAPTER 11

INTERNATIONAL HUMAN RIGHTS INTERNATIONAL HUMAN RIGHTS LAWLAW

PROFESSOR PROFESSOR

DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID

11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMAN RIGHTS RIGHTS [Textbook, p. 339][Textbook, p. 339]

• The crux of international human rights law: to afford legal protection of every human being on the planet earth.

• “All individuals, solely by virtue of being human beings, have rights which no society or State should deny”.

• Unfortunately, however, there are radically different definitions, and interpretations of human rights, and different approaches.

11. 1.1 11. 1.1 Categorisation of human rightsCategorisation of human rights

Human rights are generally divided into three main categories:

(1)civil and political rights; (2) economic, social and cultural rights; and (3) group or peoples’ rights. They are often confusingly expressed in terms of

“generations” of human rights: the first, the second, and the third generation respectively.

Civil and political rightsCivil and political rights

• Civil and political rights (freedom of expression, freedom of peaceful assembly, freedom from torture, freedom from arbitrary arrest and detention, right to a fair trial, etc.) derive from the natural rights philosophy of John Locke, Rousseau and others.

• They protect against encroachments of government.

• These rights have traditionally been given priority by Western States.

Economic, social and cultural rightsEconomic, social and cultural rights

• Economic, social and cultural rights (e.g., right to work, right to education, right to access to health care) attained recognition in the twentieth century with the advent of socialism.

• They argued that achievement of economic and social rights was a pre-condition for other rights.

• That is, until the economic and social rights were realized a State was not in a position to provide civil and political rights.

Group or peoples’ rightsGroup or peoples’ rights

• Group or peoples’ rights emerged as recently as the 1970s and are supported by developing countries.

• The focus is on collective as opposed to individual rights.

• The right to development and the right to self-determination are two main examples.

• In the early 1970s, thanks to their numerical superiority, the developing countries managed to elaborate their own philosophy of human rights.

11.1.2 11.1.2 Universalism and Cultural Universalism and Cultural relativismrelativism

• The question of the ‘universal’ or ‘relative’ character of the human rights has been a source of debate from the beginning of the human rights movement.

• The proponents of the “universalism” claim that international human rights like rights to equal protection by law, physical security, freedom of speech, freedom of religion and freedom of association are and must be the same everywhere.

• Advocates of “cultural relativism” claim that most (or some) rights depend on cultural context, the term ‘culture’ being used in a broad way to include political and religious ideologies and institutional structures.

• Hence notions of right (and wrong) necessarily differ throughout the world because the cultures in which they take root differ.

• On their face, human rights instruments are on the ’universal’ side of this debate. The landmark instrument is the Universal Declaration of Human Rights (UDHR).

• The two Covenants (ICCPR, ICESCR) also speak in universal terms: ‘everyone’ has the right to liberty, ‘all persons’ are entitled to equal protection, etc.

• To the relativists, these instruments are the indicators of the so-called ‘cultural imperialism’ of the West.

• During the Cold War, such debates were mainly between the Communist and the Western.

• The West charged the Communist world with violating many basic rights of a civil and political character. The Communist world charged the West with violations of the more important economic and social rights.

• Today the universal-relative debate takes place primarily in a North-South (or West-East) framework between developed and developing countries.

11.1.311.1.3 The Islamic perspective of human The Islamic perspective of human rightsrights

• Islam has its own values and standards of human rights, founded on ‘Shari’ah’, the Divine Law, the essence of which is absolute submission to the Will of God Almighty.

• However, it appears that Islamic jurists are divided on how to interpret the original sources of Shari’ah.

Reformists and traditionalistsReformists and traditionalists

• Ijtihad: Whether the door for ijtihad has been closed or not.

• Traditionalists: must strictly follow the classical interpretations.

• Reformists: should not interpret the original sources literally but consider the rationale behind the revelation in question.

Islamic values versus Human rights instrumentsIslamic values versus Human rights instruments

• Human rights instruments are mainly based on ‘universalism’.

• There are arguments that Islamic values conflict

with some norms of the human rights instruments (esp. in respect of family law, the notion of Qawama (guardianship and authority), the notion of al-hijab, and the law of apostasy).

• To counter these, many Islamic jurists rely on the concept of cultural-relativism.

The practice of Islamic countriesThe practice of Islamic countries

• Although most of the Islamic countries apply the Western legal systems in the field of public law (with the exception of a few, like Saudi Arabia; countries like Pakistan is practising hudud law), their family laws are based on Shari’ah.

• When these countries adopt human rights instruments, they find that some of the provisions are in conflict with Islamic law.

The practice of Islamic countries [Cont.]The practice of Islamic countries [Cont.]

• In view of this, they made reservations when ratifying the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW), and the Convention on the Rights of the Child, 1989.

• Some of the Western countries make objections to these reservations on the ground that they are not compatible with the purpose of the Conventions.

• Islamic countries are on the horns of a legal dilemma.• See: Abdul Ghafur Hamid, “Reservations to CEDAW and

the Implementation of Islamic Family Law: Issues and Challenges”, (2006) Asian JIL, vol. 1 No. 2, 121-155. Conference Paper, International Conference on Islamic Family Law (2006).

11.3 The evolution of international human 11.3 The evolution of international human rights lawrights law

The concept of the international protection of human rights is revolutionary in nature given the fact that the traditional doctrine of international law had no place for it at all.

The turning point for this change of the paradigm is the Charter of the United Nations, which is usually referred to as the starting point for any study of the protection of human rights.

11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter

• Preamble: reaffirmed their “faith in fundamental human rights, in the dignity and worth of human person, in the equal rights of men and women”.

• Article 1: the achievement of international cooperation “in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”.

• Also Arts. 55 and 56 (All members pledge themselves to take joint and separate action).

• Some argue that the human rights clauses of the Charter do not impose any legal obligation on member States with regard to their own nationals.

• The better view, however, is that the use of the word “pledge’ in Article 56 implies a legal obligation, although the obligation is weak in view of the fact that there is no enumeration in the Charter of the fundamental human rights which are to be observed by States.

11.3.2 The Universal Declaration of Human 11.3.2 The Universal Declaration of Human RightsRights

• The General Assembly adopted of the Universal Declaration of Human Rights on 10 December 1948.

• Two main categories of human rights, namely: civil and political rights [Articles 3 to 21] and economic, social and cultural rights [Articles 22 to 27].

• Many laymen imagine that States are under a legal obligation to respect the rights listed in the UDHR. It is not so.

• As it is not a treaty, the Declaration as such is not legally binding.

• It is simply a list of human rights which member states ‘pledge’ themselves to promote under Articles 55 and 56 of the Charter.

UDHR UDHR [Cont.][Cont.]

• In spite of its limitations, the Declaration is of great importance in stimulating and promoting the international protection of human rights.

• It has impact in shaping subsequent treaties on human rights, and upon the content of the constitutions of new States.

• It is possible that at least some part of the Declaration, like the prohibition of torture, may subsequently have become binding as a new rule of customary international law.

International human rights treaties and their International human rights treaties and their ratification statusratification status

Convention …………….. State parties

• ICCPR 164

• ICESCR 160• CEDAW 185• Convention on the Rights of the Child 193• Convention on Racial Non-Discrimination 173• Convention against Torture 146• Genocide Convention 140

11.3.4 The International Covenant on Civil and 11.3.4 The International Covenant on Civil and

Political Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)

• As UDHR is not legally binding, States strived for adopting binding international conventions on human rights.

• The International Covenant on Civil and Political Right (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were finally adopted by the GA on 16 December 1966. Both came into force in 1976.

• As of now, there are 164 State parties to the ICCPR and 160 States parties to the ICESCR.

• Both Covenants contain a common article (Article 1) reaffirming the “right of self-determination”.

Obligations of States partiesObligations of States parties

• Art. 2(1): “to respect and to ensure to all individuals…the rights recognized in the present Covenant.”

• Art. 2(2): “to undertake the necessary steps to adopt such legislation or other measures as may be necessary to give effect to the rights recognised in the Covenant.

• Art. 2(3): “to ensure that any person whose rights are violated has an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”

Art. 4: emergency threatening the existence of the Art. 4: emergency threatening the existence of the statestate

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

Human Rights Committee (HRC)Human Rights Committee (HRC) Art. 28Art. 28

• The Human Rights Committee has 18 members.• It has three main monitoring mechanisms: (1) Compulsory reporting procedure whereby all State

parties are obliged to present reports (initial and period) indicating compliance with the ICCPR;

(2) Optional inter-State complaints procedure; and

(3) Individual complaints procedure.

OptionalOptional inter-State complaints procedure inter-State complaints procedure[Art. 41][Art. 41]

• A contracting party may, on condition of reciprocity, accept the right of the other contracting parties to bring a claim to the HRC alleging a violation of the Covenant by it.

• Negotiations between the two parties must have been completed without success.

• If satisfied that local remedies have been exhausted, the Committee shall make available its good offices.

• The Committee must, within twelve months, submit a report, which is not legally binding.

Complaints by victims of human rights violationsComplaints by victims of human rights violationsFirst Optional ProtocolFirst Optional Protocol, 1966, 1966

• The most significant monitoring mechanism is the individual complaints procedure under the First Optional Protocol to the ICCPR, 1966. There were 107 Parties to it.

• The victims of human rights violations, if they have exhausted all available domestic remedies, may submit a written communication to the Committee for consideration.

• There is also a Second Optional Protocol which deals with ‘abolition of death penalty’.

11.3.5 International Covenant on Economic, Social 11.3.5 International Covenant on Economic, Social

and Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)

• The ICESCR provides for the right of self-determination for all peoples, the right to work, the right to form trade unions and to strike, the right to social security, the right to an adequate standard of living, the right to health, the right to education and the enjoyment of certain cultural rights.

• Art. 2 (1): “each State Party undertakes to take steps… to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

ICCPR and ICESCR: compare and constrastICCPR and ICESCR: compare and constrast

(1) Obligation of state parties:

(a) The obligation under ICESCR is very general and limited to ‘taking steps’ with a view to ‘achieving progressively the full realization of the rights’ whereas ICCPR imposes a more stringent obligation on States ‘to respect and to ensure’.

(b) The obligation under ICESCR is also limited To the maximum of its available resources.

(2) Favourable condition for developing countries: A significant feature of the ICESCR is that

developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the Covenant to non-nationals. [Art. 2(3)]

(3) Individual complaints procedure: There is an Optional Protocol to the ICCPR establishing individual complaint procedure while there is no such procedure in ICESCR.

11.3.6 The Convention on the Elimination of All 11.3.6 The Convention on the Elimination of All Forms of Discrimination Against Women 1979 Forms of Discrimination Against Women 1979

(CEDAW)(CEDAW) • Adopted by the GA on 18 December 1979 and entered

into force on 3 September 1981. • 185 States Parties. • Malaysia acceded to CEDAW on 5 July 1995.• CEDAW Art. 2: To embody the principle of equality of

men and women in their national constitutions or other appropriate legislation.

• Art. 8 (2) of the Federal Constitution was amended (in 2001) to guarantee gender equality.

• The Convention establishes a Committee on the Elimination of Discrimination against Women (CEDAW), which consists of 23 independent experts as members, to monitor its implementation.

Reservations to CEDAWReservations to CEDAW

• Out of 185 States Parties , 57 have currently reservations to it.

• Most reservation are made on: Arts. 2, 5, 7, and 16.• Art. 28: A reservation incompatible with the object and

purpose of the Convention shall not be permitted.• Especially the rights granted to women in Article 16

(regarding marriage and family relations) raised widespread opposition, particularly from many Islamic States.

• Malaysia has made reservations on Arts. 5(a), 7(b), 9(2), 16 (a), 16(c), 16(f), and 16 (g).

11.3 FUNDAMENTAL HUMAN RIGHTS11.3 FUNDAMENTAL HUMAN RIGHTS

• Some of the civil and political rights, as enshrined in the ICCPR, need to be discussed further because they are of fundamental importance.

Art. 6: The Right to lifeArt. 6: The Right to life

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime (and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide).

Second Optional Protocol to the ICCPR, aiming Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, 1989at the abolition of the death penalty, 1989

[70 States parties][70 States parties]

• No one within the jurisdiction of states parties to the Second Optional Protocol may be executed and States are required to take all necessary measures to abolish the death penalty within their jurisdiction.

Art. 7: TortureArt. 7: Torture

• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

• In Ambrosini v Uruguay, immediately after his detention, the accused was subjected to various forms of torture such as (i) being forced to remain standing for 14 hours at a time, (ii) electric shocks, and (iii) physical blows to the body. The Committee considered that these facts disclosed violation of Art. (7).

• The Committee also found violation of Art. 10(1) because he was detained under conditions seriously detrimental to his health; Art. 9(3) because he was not brought to trial within a reasonable time; art. 9(4) because he was denied any effective remedy to challenge his arrest and detention; and Art. 10(1) because he was held incommunicado for months and was denied the right to be visited by any family member.

Art. 9: Deprivation of liberty; Art. 9: Deprivation of liberty; Freedom from arbitrary arrest or detentionFreedom from arbitrary arrest or detention

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention….

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release….

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]

• The question of arbitrariness - Art. 9(1): inappropriateness, injustice and lack of due process of law.

• Bringing a detainee ‘promptly’ before a competent court - Art. 9(3):

In Kennedy v Trinidad and Tobago, the accused was not brought before a judge until 6 days after arrest. The Human Rights Committee (HRC) stated that delays should not exceed a few days. In the current case, the Committee considered that the accused was not brought ‘promptly’ before a judge, in violation of Art. 9(3).

Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]

• Art. 9(4) - Habeas Corpus: This paragraph guarantees the right of every person deprived of liberty by arrest or detention to take proceedings before a court, in order to determine, without delay, the lawfulness of the detention and order the person’s release if the detention is not lawful.

• This falls squarely within the traditional common law writ of habeas corpus.

• Holding a person incommunicado has been seen as an effective bar against the ability to challenge the validity of one’s arrest, and thus in breach of Art. 9(4).[Muteba v Zaire]

Art. 10: The rights of detaineesArt. 10: The rights of detainees

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

- Allowing visits, in particular by family members, is a measure that is required for reasons of humanity.

- A lack of sanitation, light, ventilation and bedding can be treated as a violation of Art. 10(1).

Art. 14: The right to a fair trialArt. 14: The right to a fair trial

1. …everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty.

3. …everyone shall be entitled to the following minimum guarantees…:

(a) To be informed promptly and in detail … of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in

person or through legal assistance of his own choosing.

Art. 18: Freedom of thought, conscience and Art. 18: Freedom of thought, conscience and religionreligion

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Art. 26: Equality and Non-discriminationArt. 26: Equality and Non-discrimination

• Equality of treatment and the prohibition of discrimination is a pervasive theme of the ICCPR to which reference can be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25 and 26.

• HCR has identified Art. 26 as a autonomous right, i.e., a general right of non-discrimination which exists independently of other rights.

• Art. 26: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Convention on the Elimination of All Forms of Convention on the Elimination of All Forms of Racial Discrimination, 1965Racial Discrimination, 1965

[173 State parties; almost universal][173 State parties; almost universal]

Preamble:• Convinced that any doctrine of superiority based on

racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

• Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

Art. 1: Meaning of racial discriminationArt. 1: Meaning of racial discrimination

1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

2. This Convention shall not apply to distinctions, exclusions, restrictions … made by a State Party … between citizens and non-citizens.

4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

Islam and non-discriminationIslam and non-discrimination

• Al-Qur’an, Surah Al Hujarat, 49: 13 “O Mankind! We created you from a single (pair) male

and female, and made you into nations and tribes that you may know each other. Surely the noblest of you in the eyes of Allah is the most pious of you…”

• Extract from the Prophet (SAW) ’s sermon on the occasion of the Farewell Pilgrimage:

• “O people! Your creator is one, and you are all descendants of the same ancestor. There is no superiority of an Arab over a non-Arab, or of the black over the red, except on the basis of righteous conduct.”

Islam and non-discrimination [Cont.]Islam and non-discrimination [Cont.]

• It is proclaimed in a hadith that: “Through Islam, verily Allah has eradicated the egoism and

arrogance of the Time of Ignorance, and the [false] pride that people took in their ancestry. For all men are descended from Adam and Adam was made from clay.”

• It is reported that a group of Qurayshite dignitaries paid a visit to the Prophet (SAW) and told him

“How can we sit with you, O Muhammad, while you keep the company of such people as Bilal al-Habshi, Salman al-Farsi, Suhayb al-Rumi, Ammar and slaves and commoners of their types? Exclude them from your company and we will sit with you and listen to your invitation.”

• The Prophet (SAW) refused to comply but they still requested him to ‘assign a day for them and one for us’.

• The Rightly Guided Caliphs followed the Prophet’s example as far as equality and non-discrimination is concerned.

11.4 ENFORCEMENT AT THE 11.4 ENFORCEMENT AT THE UNIVERSAL LEVELUNIVERSAL LEVEL

• The best means of ensuring respect for a right is to back it up with legal guarantees to be administered by a court of law.

• In the case of human rights – no international human rights court.

• There are only “monitoring mechanisms”, which are much weaker than international adjudication.

• Two principal monitoring mechanisms: (i) those set up by the UN, and (ii) those established by international treaties.

11. 4. 1 Monitoring mechanisms established by 11. 4. 1 Monitoring mechanisms established by the United Nations the United Nations

• Art. 13 of the Charter: the General Assembly can initiate studies and make recommendations on human rights issues.

• Art. 62: The ECOSOC can make recommendations on human rights, draft conventions, convene international conferences, and hear reports from various bodies.

• Under Art. 68, a Commission on Human Rights was established by the ECOSOC in 1946 (now replaced by Human Rights Council).

• It had no authority to deal with complaints on violations of human rights. However, subsequently, it had been entrusted by means of resolutions of the ECOSOC and the GA with some monitoring and enforcement functions.

Powers of Commission on Human RightsPowers of Commission on Human Rights

(a) ECOSOC resolution 1235 “to examine information relevant to gross violations of human rights” and “to study situations which reveal a consistent pattern of violations of human rights”. This is public procedure.

May adopt resolutions deploring or condemning a particular State for its breaches of human rights.

(b) ECOSOC Resolution 1503 (confidential procedure): the communications from individuals and groups alleging human rights violations are not made public. The final outcome of the procedure is made public only when the Commission decides to submit a ‘situation’ to the ECOSOC.

Powers of Commission on Human Rights [Cont.]Powers of Commission on Human Rights [Cont.]

(c ) The procedure of appointing country or thematic special rapporteurs: The Commission entrusts either groups of expert, or individual experts, with human rights situation in a certain country.

Its value was limited. Politics played a role in choice and treatment of particular cases.

• The Commission’s powers were restricted to persuasion,

public criticism and, in the most serious cases, attempts at isolation of the offending state.

• There were no legally binding sanctions available.

Human Rights CouncilHuman Rights Council

• On 15 March 2006, the GA adopted Resolution A60/251 to establish the Human Rights Council to replace the highly politicized Commission on Human Rights (as a subsidiary organ of the GA).

• The Council consists of 47 Member States, which are elected directly secret ballot by the GA; the membership is based on equitable geographical distribution.

• Malaysia is one of the founding members.

11. 4. 2 Monitoring mechanisms established by 11. 4. 2 Monitoring mechanisms established by treatiestreaties

• International human rights treaties have their own monitoring mechanisms for compliance. E.g., for the ICCPR, the monitoring body is the Human Rights Committee (HRC); for CEDAW – the CEDAW Committee.

• Three general monitoring procedures: (1) Period reports (2) Inter-State complaints (3) Complaints (communications) by individuals.

Effectiveness of the human rights monitoring Effectiveness of the human rights monitoring mechanism at the universal levelmechanism at the universal level

• Human rights monitoring bodies are not courts of law and as such their views or findings are not binding on States parties.

• There are neither sanctions nor legally binding enforcement methods entrusted to these bodies.

• This is because they operate in an area where States are not prepared to submit to international adjudication.

• Further, the area of the international protection of human rights covers matters that are politically, socio-economically and culturally sensitive.

11.5 ENFORCEMENT AT THE REGIONAL 11.5 ENFORCEMENT AT THE REGIONAL LEVELLEVEL

• It is difficult to reach agreement on human rights at the universal level on account of conflicting ideologies and interests.

• Agreement is easier to reach at the regional level, where States are more likely to have common values and interests.

• In Europe, the European Convention for the Protection of Human Rights and Fundamental Freedoms was adopted in 1950.

• The convention creates the European Court of Human Rights (ECHR).

European Court of Human Rights (ECHR)European Court of Human Rights (ECHR)

• Under the individual complaint procedure of the Convention, a national of any State party may bring an action against his own government for breaches of human rights.

• It is very much successful and has established a considerable amount of jurisprudence.

• Non-compliance with judgments of the Court is a rarity but in such a case the Committee of Ministers of the Council of Europe can enforce it.

Other Regional human rights courtsOther Regional human rights courts

• The ECHR is the most sophisticated and practically advanced system of the protection of human rights.

• There are other regional human rights treaties, which are much less effective than the European Convention.

• In America, the American Convention on Human Rights was adopted by the OAS in 1969. The Convention establishes an American Court of Human Rights (ACHR).

• In Africa, the OAU adopted the African Charter of Human and Peoples’ Rights in 1981. It establishes the African Commission on Human and Peoples’ Rights.

• Compared to their counterparts at the universal level, regional human rights monitoring mechanisms are more advanced. They are normally judicial bodies that can make binding decisions.

11.6 MALAYSIA AND HUMAN RIGHTS11.6 MALAYSIA AND HUMAN RIGHTS

• In Malaysia, provisions on human rights can be found in the Federal Constitution, Part II, Fundamental Liberties (Arts. 5 to 13).

Art. 5: Liberty of a personArt. 5: Liberty of a person

(1)No person shall be deprived of his life or personal liberty save in accordance with law.

(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

(3)Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

(4)Where a person is arrested and not released he shall without unreasonable delay, and in any case within twenty-four hours…be produced before a magistrate and shall not be further detained in custody without the magistrate's authority.

Art. 8: EqualityArt. 8: Equality

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the in any law or in the appointment to any office or employmentappointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.* [Exception: Art. 153]

(5) This Article does not invalidate or prohibit— (a) any provision regulating personal law; (b) any provisions or practice restricting office or employment

connected with the affairs of any religion …; (c) any provision for the protection, well-being or advancement of

the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

Article 10. Freedom of speech, assembly and Article 10. Freedom of speech, assembly and

associationassociation (1) Subject to Clauses (2), (3) and (4)— (a) every citizen has the right to freedom of speech and expression;

(b) all citizens have the right to assemble peaceably and without arms;(c) all citizens have the right to form associations.

(2) Parliament may by law impose— (a) on the rights conferred by paragraph (a) of Clause (1), such

restrictions as it deems necessary or expedient in the interest of the security of the Federation…, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament…;(b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation…or public order;(c) on the right conferred by paragraph (c) of Clause (1), …the security of the Federation or any part thereof, public order or morality.

Article 11. Freedom of religionArticle 11. Freedom of religion

(1)Every person has the right to profess and practise his religion and, subject to Clause (4), to propagate it.

(2)…(3)…(4) State law and in respect of the Federal Territories of

Kuala Lumpur, Labuan and Putrajaya, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam.

(5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.

Malaysia and Human Rights treatiesMalaysia and Human Rights treaties

• Out of the many human rights treaties, Malaysia is a party only to two:

(1) CEDAW; and

(2) Convention on the Rights of the Child

(CRC).

Human Rights Commission of Malaysia Human Rights Commission of Malaysia (SUHAKAM)(SUHAKAM)

• In 1999, Human Rights Commission of Malaysia Act was passed.

• Art. 2: “human rights” refers to fundamental liberties as enshrined in Part II of the Federal Constitution.

Section 4. Functions and powers of the Section 4. Functions and powers of the

CommissionCommission (1) In furtherance of the protection and promotion of human rights in

Malaysia, the functions of the Commission shall be - (a) to promote awareness of and provide education in relation to

human rights;

(b) to advise and assist the Government in formulating legislation and administrative directives and procedures and recommend the necessary measures to be taken;

(c) to recommend to the Government with regard to the subscription or accession of treaties and other international instruments in the field of human rights; and

(d) to inquire into complaints regarding infringements of human rights referred to in section 12.

Functions and powers of human Rights Functions and powers of human Rights Commission [Cont.]Commission [Cont.]

(2) For the purpose of discharging its functions, the Commission may exercise any or all of the following powers:

(a) to promote awareness of human rights and to undertake research by conducting programmes, seminars and workshops…;

(b) to advise the Government and/or the relevant authorities of complaints against such authorities and recommend to the Government and/or such authorities appropriate measures to be taken;

(c) to study and verify any infringement of human rights in accordance with the provisions of this Act;

(d) to visit places of detention in accordance with procedures as prescribed by the laws …and to make necessary recommendations;

(e) to issue public statements on human rights as and when necessary; and (f) to undertake any other appropriate activities as are necessary….

Functions and powers of human Rights Functions and powers of human Rights Commission [Cont.]Commission [Cont.]

(3) The visit by the Commission to any place of detention under paragraph (2)(d) shall not be refused by the person in charge of such place of detention if the procedures provided in the laws regulating such places of detention are complied with.

(4) For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution.

Malaysian courts and human rightsMalaysian courts and human rights

• Malaysia is not a party to the ICCPR and the ICESCR.

• It is, therefore, not surprising that the only human rights instrument that can be relied upon by human right lawyers in Malaysia is the Universal Declaration of Human Rights (UDHR), which is not actually legally binding.

• However, the interpretative response of Malaysian courts to the UDHR is mainly unfavourable. The total rejection of the UDHR can be seen in Merdeka University Bhd case.

Merdeka University Bhd v Government of Malaysia Merdeka University Bhd v Government of Malaysia [1981] 2 MLJ 356 (Abdool Cader J)[1981] 2 MLJ 356 (Abdool Cader J)

• Held: “the Universal Declaration of Human Rights …is not a legally binding instrument as such and some of its provisions depart from existing and generally accepted rules. It is merely a statement of principles devoid of any obligatory character and is not part of our municipal law.”

• The decision of Merdeka University Bhd was unchallenged even after the passing of the Human Rights Commission of Malaysia Act 1999, section 4(4), which can be seen in Mohamad Ezam case.

Mohamad Ezam bin Mohd Noor v Ketua Polis Mohamad Ezam bin Mohd Noor v Ketua Polis

NegaraNegara [2002] 4 MLJ 449, [2002] 4 MLJ 449, Siti Norma Yaakob FCJSiti Norma Yaakob FCJ “Notwithstanding s 4(4) of the Human Rights Commission of Malaysia

Act 1999, reference to international standards set by the Universal Declaration of Human Rights 1948…and several other United Nations documents on the right of access cannot be accepted as such documents were not legally binding on the Malaysian courts. The use of the words ‘regard shall be had’ in s 4(4) of the Human Rights Commission of Malaysia Act can only mean an invitation to look at the 1948 Declaration if one was disposed to do so and to consider the principles stated therein and be persuaded by them if need be. Beyond that, one was not obliged or compelled to adhere to the 1948 Declaration. This was further emphasized by the qualifying provisions of s 4(4) of the Human Rights Commission of Malaysia Act which provided that regard to the 1948 Declaration was subject to the extent that it was not inconsistent with the Constitution.”

Decisions favourable to the protection of human Decisions favourable to the protection of human rightsrights

• Nevertheless, there are indeed a few recent cases which can be seen as enlightenment leading to a more liberal interpretation and leaning more towards the recognition of the international protection of human rights.

Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors, Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,

[2002] 2 MLJ 591, High Court[2002] 2 MLJ 591, High Court (Mohd. Noor Ahmad J). (Mohd. Noor Ahmad J). • The plaintiffs were ‘orang asli’ of the Temuan tribe. The

Land Administrator gave written notices to them to vacate the land they were occupying failing which enforcement actions would be taken.

• The learned judge traced back to the establishment of the Selangor Sultanate in 1766 and pointed out that orang asli people occupied the lands in an organized society and although the Sultan owned the lands, they were left undisturbed to manage their affairs and way of life thereon in accordance with their practices, customs and traditions.

• By referring to the worldwide trend recognizing aboriginal rights, the learned judge upheld the propriety interest of orang asli in their customary and ancestral lands.

Abd Malek bin Hussin v Borhan bin Hj Daud & Abd Malek bin Hussin v Borhan bin Hj Daud &

OrsOrs [2008] 1 MLJ 368 [2008] 1 MLJ 368 (M. Hishamudin, HC, KL)(M. Hishamudin, HC, KL)

• This is a very recent case dealing with the legality of an arrest under the ISA. The learned judge held that the arrest was unlawful under Article 5(3) of the Federal Constitution and pointed out that:

“In dealing with art 5(3) of the Constitution, I am mindful of the fact that I am presently dealing with the fundamental liberty of the citizens. The preservation of the personal liberty of the individual is a sacred universal value of all civilized nations and is enshrined in the UDHR. Article 5(3) of the Federal Constitution guarantees every person in this country of his personal liberty and protection from arbitrary arrest particularly arbitrary arrest by the State…. judges are protectors of the fundamental liberties of the citizens and that this is a sacred duty or trust which Judges must constantly uphold.”