Some light in Malaysia’s human rights tunnel

The Nut Graph 
Holding Court by Ding Jo-Ann

As published in The Nut Graph on 3 Dec 2012

AS far as human rights developments go, there’s not been much to celebrate in Malaysia or its surrounding region recently. Asean members recently signed the Asean Human Rights Declaration (AHRD), which has been ridiculed as a “declaration of state power, rather than of human rights”. Critics say the AHRD can be used to justify rights violations by citing domestic reasons such as public security, public order or morality. The AHRD also states that the realisation of human rights must be considered in their “regional and national contexts”, another loophole for governments to circumvent rights by claiming reasons like incompatibility to local culture or religion.

Such nervousness about human rights is certainly not new for the Malaysian government. Law reform supposedly meant to usher in a new era of Malaysian democracy was disappointingly piecemeal and maintained provisions allowing strict government control over the exercise of fundamental freedoms. Some “reforms” even made the law stricter.

But despite the gloom, there are some indications that Malaysia is moving, albeit slowly, towards a more open democracy. And it is now, more than ever, that Malaysians need to push for a greater recognition of human rights in our country.

Embedding rights

For rights to have tangible effect in a society, they must become part of the people’s consciousness and everyday life, and not merely a disembodied collection of statements. For this to happen, there must be a top-down as well as a bottom-up approach. Governments must recognise and respect human rights and implement policies with a rights-based framework. Simultaneously, civil society needs to educate the masses and hold the government accountable to its promises.

For Malaysia, our government, unfortunately, has not even made many promises. We are, embarrassingly, one of the few countries that have not signed two key United Nations human rights treaties – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Why would we adamantly refuse to sign these documents that Indonesia, Kazakhstan, Papua New Guinea, Pakistan, Somalia, Sudan and Zimbabwe have all acceded to?

It counts for something, then, to see our government formally acknowledge the rights to life, liberty, privacy, asylum, work, form trade unions, adequate standards of living, education and social security, and more, contained in the ADHR. Although the ADHR’s limits on the implementation of these rights risk relegating them to mere platitudes, it is still a start for Malaysia to officially admit they exist. This contributes to the top-down process of these rights becoming embedded in everyday life.

And this formal acknowledgement means these rights can now be cited legitimately as part of our government’s commitment and become part of human rights discourse locally. Some of these rights, such as the right to privacy or social security or education, go further than what is contained in our Federal Constitution. These can be used to broaden our nation’s understanding of rights to hopefully finally enable Malaysia to become part of the ICCPR and ICECSR.

Maturing democracy

A small step like this is part of becoming a mature democracy. It is certainly disheartening at times to observe the rate of change, with matters seemingly progressing, then grinding to a halt, or even going backwards. But as piecemeal and pathetic as our human rights reforms may be, it may be a misperception to dismiss them as merely political.

Professor Andrew Harding, an expert on the Malaysian constitution, says it is normal in a mature democracy for the government to concede to public opinion while also balancing security and the interests of the nation.

At a talk at Sunway University on 23 Nov 2012, he acknowledged that Malaysia is not beyond authoritarianism, but is slowly moving beyond its grasp. This, Harding observes, is part of a “new Asian constitutionalism”. Countries such as Japan, South Korea and Taiwan, once “classic developmental states” which prioritised economic and developmental interests over the rule of law, judicial independence and parliamentary democracy, are increasingly becoming more open and liberal democracies. Harding believes there is no reason Malaysia will be any different. Perhaps, he adds, the “Asian developmental state” has run its course.

Harding also notes other encouraging signs in Malaysia. One is the 2008 acknowledgement of the unjust and unconstitutional 1988 removal of the Lord President and onslaught on the judiciary. He also noted changes to the appointment process of judges, which, although still not fully transparent or independent, seems to have produced a more diverse bench in background, gender and identity.

The courts have produced some interesting decisions and thinking as well. A 2011 Court of Appeal decision struck down provisions of the Universities and University Colleges Act for being unconstitutional, for example. To reach its decision, the court said restrictions on constitutional freedoms, in this case, on the freedom of expression, had to be “reasonable”. Such judicial reasoning opens the door for other legislation to be struck down as unreasonable and thereby unconstitutional.

Contesting power

While it is certainly uplifting to hear that Malaysia has come a long way, it is still obvious that it has far to go. No government that has ruled for as long as Barisan Nasional would willingly give up power and control, which explains the merely grudging concessions granted thus far. Our media is still not free. ISA detainees are still tortured, the Act’s repeal notwithstanding. Suspicious deaths in police custody still occur. And not very much has been done by the government to address any of this.

But the fact that some concessions have been made is, perhaps, worth taking note of in itself. It indicates that the government is not impervious to public opinion and does respond, however inadequately. Given that part of change is the process of back and forth, the work of election reform group Bersih 2.0 and other such civil society movements become even more important. Such efforts are crucial to represent public opinion and pressure the government along the route to a truly more open democracy.

There may well be a liberalising trend among Asian countries, but trends are neither inevitable nor automatic. Change is still borne on the efforts of thousands of individuals, doing what they can with whatever resources they may have, to make things better. That’s what I believe is happening in Malaysia, and why I believe that even though things look bleak at times, our efforts to make Malaysia a better, more inclusive, fairer and safer place are not and will never be futile.