The Role of the Judiciary in the Protection of Fundamental Human Rights: the Malaysian Experience
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See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/337906624 THE ROLE OF THE JUDICIARY IN THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS: THE MALAYSIAN EXPERIENCE Article · December 2019 CITATIONS READS 0 98 All content following this page was uploaded by Lavan Nj on 12 December 2019. The user has requested enhancement of the downloaded file. [2017] 1 LNS(A) lxxv Legal Network Series 1 THE ROLE OF THE JUDICIARY IN THE PROTECTION OF FUNDAMENTAL HUMAN RIGHTS: THE MALAYSIAN EXPERIENCE by LAVANIYAN NATHAN JOTHY* INTRODUCTION/ABSTRACT Human rights as a concept has evolved tremendously since the adoption of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly on 10 December 1948. The Declaration has given rise to many other important human rights documents such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966, the Convention on the Prevention and Punishment of the Crime of Genocide in 1951 and the Convention on the Rights of the Child. Not only did the UDHR become the catalyst for international conventions, it also found its way into many national constitutions and regional conventions, where it became the founding legal document for many aspects of state relations with its citizens. For the purposes of this article, the national judiciary of Malaysia will be the focus of our analysis on how they have decided disputes in relation to human rights questions, with specific reference to issues relating to the right of religion and freedom of expression, association and assembly within the national and international law framework. [2017] 1 LNS(A) lxxv Legal Network Series 2 HUMAN RIGHTS - THE CURRENT DEBATES Throughout human history, the human penchant for violence and abuse of other humans is well recorded and known.[1] The Haiti 1890 Massacre, the Armenian Massacre, the Holocaust, the Hutu and Tutsi conflict in Rwanda, Khmer Rouge brutality in Cambodia, Islamic State brutal and inhuman regime in some parts of Syria and Iraq, genocide of the Bosnian people in Srebrenica by the Serbian army, the Darfur crisis and the continued denial of the human rights of Palestinian people in the hands of Israel are a few examples where human lives have become both meaningless and inconsequential in political and military conflicts, or where a repressive government is in power. Despite these dark episodes in human history, such heinous crimes against humanity continue unabated until the present day. This is despite the tremendous progress the human race has made in terms of technology, science, art, entertainment, social movements and justice and all other progress since the age of reformation and reason. The problem with international human right protection is the relationship that exists between 2 different states in relation to each other. Generally no one state can interfere with the jurisdiction of other states. Article 4 of the United Nations Charter expressly states that “all members shall refrain in their international relations from the threats or use of force against the territorial integrity or political independence of any state” and Article 2 of the Charter states that “all members shall settle their international disputes by peaceful means”. These two articles of the abovementioned instrument recognised the general right of sovereignty of the individual [2017] 1 LNS(A) lxxv Legal Network Series 3 state, which cannot be breached other than as provided in Chapter 7 of the Charter. There are conflicting prevailing views on how international documents on human rights can be used at the national or municipal levels. In this regard, Shaw (2005)[2] stated that “positivism stresses the overwhelming importance of states and tend to regard international law as founded upon the consent of states… this theory is known as dualism (or sometimes as pluralism) and stress that the rules of the systems of international law and municipal law exist separately and cannot purport to have an effect on or overrule the other”. The author continues that “those writers who disagree with this theory and who adopt the monist approach… the monists are united in accepting a unitary view of law as a whole and are opposed to the strict division posited by the positivist”. In elaborating on this monist approach, Evans (2010)[3] stated that “in the view of the monist, there is a single legal system with international at its apex and all national constitutions and other legal norms below it in the hierarchy. There is no need for international obligations to be transformed into rule of national law and in any case of apparent conflict, the international rule prevails.” Despite the many international human rights documents, the abuse of human rights nevertheless continues in many countries, especially those countries that are classified as ‘third world countries’. Globalization of trade and trade agreements have placed emphasis on the wealth creation capacity of states, rather than the importance of affording adequate protection to vulnerable groups of people such as migrant workers, those [2017] 1 LNS(A) lxxv Legal Network Series 4 who are socially deprived of wealth due to their indigenous origin, discrimination based on race, religion or gender and forced laborers. Human rights are also continuously suppressed when viewed in relation to national security. In spite of the existence of conventions such as the International Convention On The Protection of the Rights of All Migrant Workers and Members of their Families, International Convention On the Elimination of All Forms of Racial Discrimination, Convention On the Elimination of All Forms of Discrimination against Women and Convention on the Rights of the Child and conventions pertaining to the rights of detainees and prisoners, the spectrum of human rights as a whole does not reflect any positive note. Human Rights Watch’s Executive Director Kenneth Roth states as follows in their annual human rights report: “The world has not seen this much of tumult for a generation. The once-heralded Arab Spring has given way almost everywhere to conflict and repression. Islamist extremists commit mass atrocities and threaten civilians through the Middle East and parts of Asia and Africa. A Cold War-type tension has revived over Ukraine, with even a civilian jetliner shot out of the sky. Sometimes it can seem as if the world is unraveling. Many governments have responded to the turmoil by downplaying or abandoning human rights. Governments directly affected by the ferment are often eager for an excuse to suppress popular pressure for democratic changes…some of these governments continue to raise human right concerns, but many [2017] 1 LNS(A) lxxv Legal Network Series 5 appear to have concluded that today’s serious security threats must take precedence over human rights”.[4] The effectiveness of international law in relation to the protection of human rights therefore is put into question with the continued abuse and breach of human rights that occur around the world. Sohn argued that “although the existence of the norm embodied in these documents cannot be denied, controversy has been raging for almost forty years about their binding character and practical effect. It has been argued, in particular that most of these documents are soft law, rather than hard law. According to this view, these documents contain no more than mere guidelines, which states need not follow. Furthermore, there are no effective means of implementing the document, and violators go unpunished”.[5] This argument is further solidified by the fact that any reference to the International Court of Justice is only by the state parties against another state and not based on individual reference.[6] If international documents relating to human rights merely provide the guidelines for the protection of human rights, do states that incorporate this document into their national laws provide adequate and necessary protection when allegations of human rights abuses or breaches are raised at the national courts level? For this purpose, it is necessary first to identify the function and the role of the judiciary and the courts in upholding laws and in the protection of human rights. THE JUDICIARY AND THE ROLE OF JUDGES [2017] 1 LNS(A) lxxv Legal Network Series 6 In a civil society, “ubi societas ibi jus” prevails and it is accepted that a necessary order must be maintained so that society can function in its expected and natural ways. Law is made, promulgated and regulated. When this law is accepted by civil society, the enforcement mechanism is established to ensure that the law is followed and those who breach these sets of law will be sanctioned. The responsibility for that sanction rests with what we call the judiciary. The judiciary consists of men and women of such great knowledge in the law that they are entrusted to resolve our disputes. These judges or arbitrators of law, as the civil society calls them, are not only responsible for ensuring that the law made by civil society is applied according to the wishes and intent of that society, but are also responsible for ensuring that the law is applied in such a way that certain principles and rules relating to the law are not derogated. Principles relating to justice, fairness, equity, the question of rights and access to law will all become an important question that a judge needs to answer in order for him to arrive at a just decision.