Human Rights in 21st Century Malaysia
by Tommy Thomas
Introduction
The moment decisions affecting the life of one human being were taken for him by another human being, human rights made its appearance. It is hence as old as man. Human rights made its presence felt since time immemorial. It came to play when governors started governing the governed, and when rulers started ruling the ruled. At its core, human rights represent the tension between the state and its citizenry.
The matter of human rights is universal, both in time and in space, in history and in geography, cutting across racial, ethnic, religious, cultural and political divides. Ancient philosophers like Plato, Aristotle and Socrates wrestled with the subject. So did 17th century philosophers like John Locke, David Hume, Montesquie and Voltaire.
The enemy of human rights has always been the state, which is not just limited to government or one of its branches, the executive, but also extends to all its agencies, bureaucracies and civil servants – a modern term being "The Establishment". It is invariably the state, through an agency, instrumentality or person, which infringes the rights of an individual. The distrust of Government because it is a real adversary of human rights is perhaps best articulated by Thomas Jefferson in his first inaugural address after being elected the 3rd President of the United States on 4th March 1801.
"Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the form of kings to govern him".
President Jefferson concluded his address exactly 200 years ago this way:-
"…what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow citizens – a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labour the bread it has earned."
The evil that was Adolf Hitler and the outbreak of the 2nd World War ironically gave a tremendous boost to human rights. In 1941, President Roosevelt declared that he looked forward to a world founded upon 4 essential human freedoms:-
-freedom of speech and expression;
-freedom of worship;
-freedom from want;
-freedom from fear.
They are the bedrock of human rights.
Two landmarks in the history of human rights occurred shortly after the end of the 2nd World War. First, the Nuremberg Trials in 1945 which established for the first time that the doctrine of "superior orders" is not available even during war, and even those in political and military high command are liable for waging wars of aggression and for genocide. Secondly, the coming into effect in 1948 of the Universal Declaration of Human Rights which provides "inter alia" that everyone has the :
-right to life, liberty and security of person
-equality before the law without discrimination
-freedom of movement
-freedom of thought, conscience and religion
-freedom of opinion, speech and expression
-freedom of peaceful assembly.
These developments influenced the conduct of the imperial power in British Malaya between 1945 (when the British returned to reclaim Malaya from the Japanese) and 1957 (when Merdeka was achieved). It is useful to recall that during that 12-year period, although we were colonized and were part of an imperial empire, Malayans enjoyed substantial freedom, including:
-the right to form UMNO, MCA, MIC and other political parties;
-organizing nationwide assemblies to oppose Malayan Union.
-the holding of public rallies prior to the first Federal elections held in July 1955 for a new Federal Legislative Council. Alliance captured 51 out of 52 seats, and Tunku Abdul Rahman, became Chief Minister in 1955.
-the holding in January 1956 of independence talks in London
-the appointment in March 1956 of an independent Commonwealth Constitutional Commission chaired by Lord Reid.
-the holding in 1956 by the Reid Commission of 118 meetings all over Malaya.
It must also be remembered that Emergency was declared on 18th June 1948 because of the Communist insurgency which lasted for 12 years and was only lifted on 31st July 1960. During the Emergency 11,035 persons were killed, 21,916 suffered casualties, and Henry Gurney, the British High Commissioner was assassinated. In fact, when Merdeka was declared on 31st August 1957, Malaya was in Emergency.
Yet civil liberties and the rule of law were never seriously undermined. The fact that the nation was going through a violent insurrection was not used by the imperial power as an excuse to deny or delay our independence. Therefore, it is a myth that our people did not enjoy any human rights prior to Merdeka.
Constitutionalism
Constitutional Government, that is, a government whose power is circumscribed by a written constitution is seen as the best measure to combat the self-interest and ambition of those who govern. History has demonstrated that when it comes to the use of power – those who have excessive amounts of self-interest and ambition are apt to be the most influential – and most dangerous. Hence, it is to curb them, that limits to governmental power should be designed and constructed. Restraint of governmental power is thus the first pre-condition of human rights. The Reid Commission in its Report published in February 1957 endeavoured to achieve the objective of checks and balances by giving significance to four critical features in the Constitution, namely, federalism, separation of powers, entrenched human rights and the constitutional amendment process.
The first battle for human rights which took place shortly before Merdeka was the harbinger of things to come. The majority in the Reid Commission gave pride of place to three vital principles:
-the Rule of Law,
-conferring the right to every person to challenge in the Supreme Court the constitutionality of any law passed by Parliament, and
-all restrictions by Parliament on fundamental liberties must be "reasonable".
Justice Hamid of Pakistan dissented. His dissent suited the thinking of Tunku and the Alliance Party. Hamid's minority view was accepted and formed part of the Federal Constitution, which excluded the three vital principles recommended by the majority four members of the Reid Commission.
Concerns expressed by two lawyers, S M Yong and K L Devasar, when the Reid Report and Hamid dissent were debated in the Federal Legislative Council, were given short shrift. Again, a harbinger of things to come once independence was accomplished.
The Reid Commission's recommendations on fundamental rights were thus modified, and appear as Part P of the Federal Constitution entitled "Fundamental Liberties".
1 Article 5 - Life and Liberty of the Person.
2 Article 6 - Prohibition of Slavery and forced labour
3 Article 7 - Protection against retrospective criminal and repeated trials.
4 Article 8 - Equality.
5 Article 9 - Prohibition of Banishment and freedom of movement.
6 Article 10 - Freedom of speech, assembly and association.
7 Article 11 - Freedom of religion.
8 Article 12 - Right to education.
9 Article 13 - Right to property.
In order to determine the state of human rights in the new Millennium, one has to review the performance of the three branches of government since Merdeka in a constitutional context.
The Executive and the Legislature
It is convenient for three reasons to take the Executive and Legislative branches together. First, as Malaysia has adopted the Westminister model, members of the Executive branch are all members of Parliament. Secondly, all Acts of Parliament originally emerge as Bills presented by the Executive. Thus, the Executive, is for practical purposes, responsible for the drafting of all laws. Thirdly, because of the rigorous use of the whip system, the ruling party's overwhelming majority in Parliament ensures that all Bills presented by the Executive are passed by Parliament, often without adequate discussion and always without amendment.
Before one reviews normal law-making by the Malaysian Parliament in the past forty years, that is, the enactment of Acts of Parliament, two overriding criticisms must be made against the Executive and the Legislature. First, the effect of the amendments that these two branches of Government made to the Federal Constitution in the first two decades were such as to completely truncate the safeguards put in place in the original Constitution thereby calling into question the nature and efficacy of the entire amendment process. The Constitutional Amendments1 that were passed in 1960, 1962, 1964, 1971, 1973 and 1981 substantially altered the checks and balances firmly in favour of the Executive to the severe detriment of the citizen.
Secondly, the frequent reliance on Emergency powers. The first Emergency, which ended after the 12-year communist insurgency on 31 July 1960, was followed by the Second Emergency, which was declared on 3 September 1964 for the whole of Malaya by reason of Indonesian Confrontation. The Third Emergency, limited to the State of Sarawak, was declared on 14 September 1960 by reason of the events surrounding the dismissal from office of the Chief Minister, Stephen Kalong Ningkan. The 13 May 1969 riots led to the declaration of the Fourth Emergency for the whole nation on 15 May 1969. Finally, on 8 November 1977, the Fifth Emergency, limited to the State of Kelantan, was declared to deal with a political crisis there. The Second to Fifth Emergencies have yet to be revoked.
Thus, during 43 years of independence, there has only been one short spell of four years, between 15 August 1960 and 2 September 1964, when the country has not been subject to an Emergency. In fact, in all the states of Malaysia, except Sarawak and Kelantan, there are still in force two states of Emergency, while in those two states there are still in force three states of Emergency. The continuous use of Emergency power for 39 out of 43 years of the independent nation's life has for all practical purpose destroyed its credibility. Normalcy has long returned to the nation. Seven general elections and numerous state elections have been held since the last nationwide emergency was declared in May 1969. Thus, no objective grounds remains for this permanent state of emergency. It is thus not surprising that the authors of the "Justice in Jeopardy" published in April 2000 by a distinguished panel of Commonwealth judges and lawyers on behalf of four well-respected International Organisations for lawyers observed:-
" The continuation of Emergency after the need for it has passed can have an insidiously brutalizing effect upon the administration of justice in any country. We suggest that the Malaysian malaise may be due in no small measure to the gradual acceptance of a state of emergency as the norm of Government."
Turning to law making, of the 900 odd Acts of Parliament passed since Merdeka, there are at least 14 statutes (all presented by the Executive) which cause severe inroads, and, for practical purposes, abrogate constitutionally protected fundamental rights.
1 Public Order (Preservation) Act, 1958.
2 Prevention of Crime Act, 1959
3 Trade Union Act, 1959.
4 Immigration Act, 1959
5 Internal Security Act, 1960.
6 Societies Act, 1966.
7 Police Act, 1967.
8 Emergency (Public Order and Prevention of Crime) Ordinance, 1969
Universities and University Colleges Act, 1971.
9 Official Secrets Act, 1972
10 Sedition Act, 1972.
11 Essential (Security Cases) Regulations, 1975.
12 Printing Presses and Publicity Act, 1984.
13 Dangerous Drugs (Special Preventive Measures) Act, 1975
The most pernicious legislation is the Internal Security Act ("ISA") which gives sweeping powers to the Executive, (the police and the Minister of Home Affairs) to arrest and detain any person for a period of 60 days; thereafter the Minister can order that person to remain in detention for a further two years, which detention can be renewed indefinitely every two years. Preventive detention is terribly insidious because a person's liberty is deprived without trial. Other extraordinary powers extend to prohibiting meetings and banning publications, books and periodicals.
When presenting the Bill in Parliament on 21 June 1960, the then Deputy Prime Minister and Home Minister, Tun Razak stated that as there were still 583 armed terrorists in Northern Malaya there was still a need for the people "to be protected from communists subversion." He also gave the assurance that the ISA would be used with the utmost care so as to avoid the abuse. Despite that assurance, more than 20,000 people had been detained during the period 1960 to 1990 under the ISA for diverse reasons which have nothing to do with communist subversion. With the signing of a formal peace treaty with exiled remnants of the Communist Party of Malaysia in Thailand in 1989, reliance no longer seems to be placed by the Executive on communism as a ground for detention.
As with other restrictive laws in Malaysia, the ISA, already a powerful weapon in the armoury of the Executive, through a series of amendments, has incrementally extended executive powers, while stripping away the scant judicial safeguards designed to protect against their abuse. Now, the reality is that once a person is detained under the ISA, he or she has no effective recourse to legal protection nor any opportunity to establish his or her innocence of the accusations made against them. As such, the ISA is contrary to the Part II fundamental liberties and core principles of international law, including the right to liberty of the person, to freedom from arbitrary arrest, to be informed of the reason for arrest, to the presumption of innocence and to a fair and open trial in a court of law. In fact, it would be impossible to find any scholar of worth or independence prepared to argue the contrary.
Although protection from ill-treatment and torture of detainees is not expressly stated as a fundamental liberty under Part II of the Federal Constitution, it is still prohibited under the expression "life or personal liberty" in Article 5 and by various international conventions, including the Universal Declaration of Human Rights. It is axiomatic that the right to protection against torture and ill-treatment is a human right of the greatest importance. Details of personal experience of ex-detainees tell a harrowing story of mental and physical coercion. The recent case studies of Munawar Anees, Sukma Darmawan, S. Nallakaruppan and Anwar Ibrahim seem to suggest that old habits die hard.
Laws curbing freedom of movement include ESCAR. Provisions also appear in the Police Act and Immigration Act, curtailing freedom of movement. Thus, Malaysian citizens from Peninsular Malaysia do not have a right to travel to Sabah and Sarawak.
Three statutes seriously undermine freedom of speech and expression: The Sedition Act, The Official Secrets Act and the Printing Presses and Publications Act. Fan Yew Teng, Param Cumaraswamy, Lim Guan Eng and Karpal Singh were prosecuted under the Sedition Act, while Lim Kit Siang and journalists Sabry Sharif and James Clad were found guilty of offences under the Official Secrets Act. The Printing Presses and Publications Act contains numerous restrictions on the publication of newspapers and periodicals, including the requirement for an annual licence which may be revoked by the Minister at any time. During the political tension of 1987 in the wake of Operation Lalang, three major national newspapers, the Star, Sin Chew Jit Poh and Watan had their licenses revoked. Self-censorship among newspapers owners, who are anyway closely linked to the governing coalition, and their editors is a grave impediment to free expression in Malaysia. Publication of opposition parties are restricted to sale to party members only. Foreign newspapers and journals are periodically banned or delayed. The broadcast media is completely denied any alternative thinking. Thus, RTM and TV3 do not broadcast material from the opposition. The advent of the Internet has given an impetus to on-line reporting and sites like Malaysiakini have flourished – itself a commentary on the needs of the average news-starved Malaysian. Finally, the Printing Press Act contains penal provisions, as Irene Fernandez discovered when she was charged thereunder.
Freedom of association is restricted by provisions in the Societies Act, Trade Unions Act and Universities and University College Act. The Societies Act requires every club, organization, society or political party to secure a licence, thereby providing the executive with the means to block or impede the formation of any organization, which it considers undesirable. The Act has an intimidating effect, and together with the onerous bureaucratic requirements, which can result in prolong decision-making, have had a negative impact on the development of independent civil society. This has led to some NGOs registering as companies under the Companies Act, 1965 which itself has its own bureaucratic regime. The Trade Unions Act restricts the rights of some workers in a manner inconsistent with international norms. Strict control over a trade union's affairs is exercised by the relevant bureaucracy. The Act also does not permit large groups of trade unions covering workers in different fields. Thus, the MTUC is not registered under the Trade Union Act.
Perhaps the most retrograde legislation from a freedom of association perspective is the Universities and University College Act that severely impacts upon academic freedom and the autonomy of institutions of higher learning. The all-embracing nature of the Act is such that if university students wish to organize a disco or a debate, they can only do so after securing the prior consent of their Vice-Chancellor. The raison d'rtre of universities is to promote learning; intellectual freedom should be encouraged, nurtured and cultivated. If one does not allow university students the freedom to think, reflect and express themselves, what hope is there for a thinking and reflecting intelligensia. The Act extends to the academic staff; they are prohibited from making any public statement that may be perceived as being "political" – the absurd direction in 1997 that academics should not give negative public statements on the incidence and nature of the "haze" as it might deter tourism shows the length to which this power has been exercised.
Article 10 (1) (b) of the Federal Constitution provides that "all citizens have the right to assemble peacefully and without arms". Any restriction on this fundamental liberty by an Act of Parliament must be "necessary or expedient in the interest of security…or public order." The Police Act and the Penal Code contain provisions that severely impact upon this most important civil liberty that distinguishes a truly democratic society from an authoritarian one. The right to assemble is an intrinsic part of the right to freedom of expression; an assembly attempts to collectively express an opinion. The extent to which such laws have been applied include forum in hotels, whether by lawyers to discuss the Lim Guan Eng case or FOMCA to discuss the water shortage or reformasi meetings of any kind or the APCET closed-door forum to discuss the East Timor question.
"Justice in Jeopardy" described the cumulative effect of an Executive controlled Parliament in Malaysia since Merdeka as follows:-
"…we think needlessly repressive legislation has impacted crushingly upon the agencies of the law – the judiciary, the legal profession and the police. The true spirit of justice under the law has been weakened. In such a climate authoritarian personalities flourish; libertarians are frustrated, practitioners are reduced to increasingly frenzied posturing; and the police wield extensive and largely unchecked powers that, in Lord Acton's famous words 'tend to corrupt'…".
The Judiciary
The founding fathers of our Constitution envisaged the Malaysian judiciary to act as the bulwark to protect and secure an individual's fundamental liberties enshrined in Part II of the Federal Constitution. In its words:
"The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to annul any attempt to subvert any of the fundamental rights, whether by legislative or administrative action or otherwise".
The Court's first duty is to stand between citizen and State; a citizen aggrieved with any decision of the State should be able to turn to an independent judiciary for justice.
Article 4 of the Merdeka Constitution provides that the Constitution is the supreme law of the land and any law passed by Parliament which is inconsistent with the Constitution is, to the extent of such inconsistency, void. Thus, we have Constitutional Supremacy, like the United States and India (and not Parliamentary Supremacy like England).
The Malaysian judiciary's second duty is to act as the sentinel of the Constitution; that is, to protect, preserve and defend the Constitution from legislative or other attack. Its third duty is to interpret the Constitution. This explains the rationale of the celebrated remark of Chief Justice Charles Hughes of the United States Supreme Court:
"We are under a constitution, but the Constitution is what the judges say it is."
What have our judges said of our Constitution.
In the early days of independence, the judges of Malaya, perhaps because all of them had their training in Dicey's England where Parliament (and not the Consitution) is supreme, seemed to have philosophical difficulties in accepting their new role as guardians of the Constitution. According to Rais Yatim:
"…it was partly because of this initial inability to recognize constitutional supremacy that the deterioration in the protection of rights took hold almost immediately after Merdeka."
Two cases decided shortly after Merdeka, that is, in 1958 shared the distinction of being the first tested for the constitutionality of executive actions of detention and banishment. State action was approved in both. These 1950's cases set the trend which has continued unabated until today, with some minor digressions
The major human rights cases in the 1960's were Stephen Kalong Ningkan, Assa Singh and Karam Singh. In each case executive action based on laws which were clearly inconsistent with the letter and spirit of the fundamental liberties enshrined in Part P of the Federal Constitution was upheld. The Karam Singh case, in particular, was a dangerous precedent; it approved the entirely subjective discretion of a detaining authority which meant that such discretion could not be reviewed by Court, thereby eroding the liberty of an individual (protected by Article 5). In arriving at its conclusion, the Federal Court followed the much criticized majority decision of the House of Lords in Liversidge v. Anderson , while rejecting the vigorous dissent of Lord Atkin which had been accepted by most courts in the common law, including England, the home of Liversidge v. Anderson.
In many ways the 1970's was the worst decade for the recognition and protection of human rights by our Courts. In more than 20 reported cases, mostly of the Federal Court, every action by the executive, purportedly acting under power conferred by acts of Parliament, was approved and endorsed by the Judiciary, with the result that by 1980, that is, 23 years after Merdeka, the Court had, by these reported decisions rendered illusory the fundamental liberties conferred by Part P of the Federal Constitution. Perhaps the most extreme example was the sad case of Loh Wai Kong v. Government of Malaysia when the Federal Court rejected a citizen's right to an international passport, notwithstanding his freedoms of liberty and movement. Suffian LP declared: "…a citizen has no fundamental right to leave the country and travel abroad…and he does not have a right, not even a qualified right, to a passport…".
The Indian Courts, ever vigilant in the protection of very similarly worded fundamental rights in their 1950 Constitution, had creatively pronounced the "basic structure" doctrine whereby Constitutional amendments by Parliament could not go so far as to have the effect of destroying the basic structure and features of the Constitution, which included prohibiting Parliament from abrogating human rights. The Federal Court rejected this doctrine and gave judicial imprimanteur to the right of Parliament, itself a creature of the Federal Constitution, to amend in whichever manner it so chose, its own creator, the Federal Constitution. The major casualty in this exercise of judicial abdication of its constitutional duty is human rights.
The same trend continued in the 80's and 90's. The notorious cases in the third decade of Merdeka were Merdeka University, Sim Kie Chuan v. Pudu Prisons, Louis Cheah, Mark Koding, Karpal Singh and Theresa Lim. In Karpal Singh's case, the Federal Court overturned the decision of the High Court which had granted an order of habeas corpus releasing Karpal from detention under the ISA. Theresa Lim was another victim of Operation Lalang who did not receive judicial sanctuary.
So did the cases decided in the 1990's. Cases like Yong Teck Lee, Tai Choi Yu, Pung Chen Choon and Liew Ah Kim did not give value or content to the constitution's fundamental rights; in each case, state action was upheld.
A survey of reported Malaysian constitutional cases will not be complete if mention is not made of a few (and unfortunately, too few) cases of success from a human rights' viewpoint. To my knowledge, in four reported cases, detainees under the ISA were released: Dato' Amar James Wong Min Kee Tan Boon Liat, Tan Sri Raja Khalid and Jamalludin Osman. In at least three cases, Teh Cheng Poh, Yap Peng and Mamat Daud, the Court struck down statutory provisions as unconstitutional.
Perhaps the case that has contributed the greatest since Merdeka to the promotion of human rights in Malaysia is, in my view, the landmark judgment of the Supreme Court (comprising a five judge panel) in the Nordin Salleh case. In the course of striking down an anti-hopping provision in the Kelantan Constitution as being contrary to freedom of association under Article 10 (1) (c) of the Federal Constitution, the Supreme Court accepted liberal principles of constitutional interpretation. First, from India , the principle that in testing the validity of any state action (whether executive or legislative) which impacts upon any Part P fundamental liberty, the Court's duty is to consider whether such state action "directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory". Secondly, from the Privy Council, the principle that a constitution should not construed rigidly or with austerity; instead, it should be interpreted generously befitting its special status and character as a living constitution.
The Nordin Salleh case acted as a spur to the Court of Appeal, under the intellectual leadership of Gopal Sri Ram JCA, in a series of cases which gave an expansive meaning to Constitutional expressions like "right to life and liberty" and "equality", particularly in the area of employment. Taken together, they certainly form an impressive body of constitutional law, including fashioning remedies when fundamental rights were infringed. Much of this jurisprudence was inspired by Indian case law.
An objective observer of the Malaysian constitutional landscape can however legitimately comment that cases like Teh Cheng Poh, Nordin Salleh and Sugumar Balakrishnan are exceptional cases limited to their special circumstances or peculiarities, they represent the aberration and not the norm, and, most importantly, that their precedent value is diminished by the fact they are not followed by most of our judges; instead, our judges seem to prefer cases like Karam Singh, Theresa Lim and Phang Chin Hock. Thus, it is a fact that the wise words of the Supreme Court in Nordin Salleh, which case has formed part of Malaysian law for nearly a decade, has not been followed in any of the human rights cases that have created controversy and attracted criticisms by the Bar Council and international legal bodies in the past three or four years.
It is therefore fair to conclude that the precedents created by the pioneer judges in the first decades of Merdeka were such that Malaysian constitutional law yielded no joy to any supporter of human rights. The seeds were sown in the early days of independence and have taken deep root. When judges interpret a Constitution like a will, the Constitution will die.
What is singularly frustrating for a constitutional lawyer is the reluctance of most of our judges to follow developments elsewhere. The 9 Articles which form Part II of the Federal Constitution are found not only in the Indian Constitution, but also in the European Convention on Human Rights, the Canadian Charter of Rights and in the Human Rights legislation of England, New Zealand, Australia and South Africa. Thus, human rights jurisprudence from the very respectable judiciaries of these Commonwealth countries is most valuable and instructive. In the cases of India and Canada, they have the additional benefit of constitutional support. Yet, Malaysian judges do not seem to be interested in developments there. Thus, the practise of constitutional law in Malaysia is a lonely one which does not seem to attract the lively interest of either litigant or lawyer; itself, a poor commentary on the state of affairs of human rights.
A student of comparitive law can thus hardly fail to notice the wide divergence between human rights law of Malaysia and that of countries like England, India, Australia and Canada, which divergence is not apparent in the reception into Malaysia of their law in civil or commercial law. Such disharmony or disequilibrium is not in the interests of the development of Malaysian law. Infringements of human rights by state agencies in these countries are very similar to those occurring in Malaysia; hence, the experiences are similar, and case law and their reasoning from their Courts should be followed by our Courts, as happens in other branches of Malaysian law.
The "Justice in Jeopardy: Report was very critical of some of the controversial decisions; the report concluded with this hope:-
"The Judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression."
In the past five years, the Bar Council has issued Press Statements and the Malaysian Bar has passed resolutions criticizing the conduct of judges, which in turn led to injunctions being granted to restrain further meetings of the Malaysian Bar, a statutory body set up under the Legal Profession Act, 1976, at which debate was to take place on the conduct of the judiciary. In March 2001, the Kuala Lumpur Bar Committee submitted a lengthy memorandum to the Chief Justice, with copies to the Law Minister and Attorney-General, cataloguing defects in the system, and proposing reform.
The Singapore Straits Times referred to a soon-to-be published survey of governmental institutions and the media in Malaysia which revealed that public confidence in the judiciary is shockingly low: only two in 10 people polled were happy with the state of the Courts. Apparently, the figures were marginally better for the police, media and Parliament.
Justice Sheikh Daud Ismail, a well respected judge of great integrity, frankly observed in a speech delivered on 9th January 2001:-
"All along people were confident that the last place they could get justice is in the courts but in the light of certain cases before the courts and certain goings on in some courts, they realized that the courts have let them down miserably. It used to be that the tinting of judges cars was for security but now I say it is to hide my embarrassment."
In an interview published in the Star, Tan Sri Dzaiddin, upon taking the Office of Chief Justice and thus Head of the Judiciary, stated:
"I am confident that I can correct the negative public perception.
Q: "Is the current public perception of the judiciary justified?"
A: "I think it is justified".
Q: "So, you agree there is a lot of bad happenings in the judiciary now?"
A: "Yes".
Dato' Rais Yatim, the Minister responsible for legal matters, had on numerous occasions in the second half of 2000 joined the ranks of those calling for reform of the judiciary.
A principal reason for these criticisms of the judiciary is the controversial decisions impacting upon human rights. If only, the Supreme Court reasoning in Nordin Salleh that any state action which makes the exercise of human rights "ineffective or illusory" would be unconstitutional had been applied uniformly, consistently and without exception by all our judges in the last decade!
History is replete with examples of creeping authoritarianism, it moves quietly, insidiously, step by step. Oppression seldom happens overnight. Loss of freedom is usually gradual. In the graphic words of Pastor Martin Niemoeller:-
"In Hitler's Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."
Who is responsible for the bleak of human rights in 21st century Malaysia? I would suggest that all of us are to blame. Even if primary responsibility rests on the State in denying space to its citizenry, what has the citizenry done about it. What have all of us done. I am sorry to say, nothing. I am as guilty as the next person. Ultimately, a society gets the human rights it deserves. As James Baldwin said:
"Freedom is not something that anybody can be given; freedom is something people take and people are as free as they want to be".
Clarence Darrow's comment is in the same vein.
"You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free."
Justice Learned Hand of the US Supreme Court offered this acute observation:
"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."
I hope, and pray, that we have not reached the stage where liberty has died in the heart of the average Malaysian.
Part 1: Introduction
Part 2: Constitutionalism
Part 3: The Executive and the Legislature
Part 4: The Judiciary
Tommy Thomas is a leading constitutional lawyer in Malaysia. Source: Tommy Thomas, ‘Human Rights in 21st Century Malaysia’, Insaf, The Journal of the Malaysian Bar, XXX, No. 2, June 2001, pp. 91 – 106.
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