By Tengku Razaleigh,
December 10 marks the 61st Anniversary of the Universal Declaration of Human Rights “in recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family”
Proclaimed at the end of war that had witnessed “barbarous acts which have outraged the conscience of mankind”, it recognized that such acts came out of a disregard and contempt for human rights. It recognized human rights as “the foundation of freedom, justice and peace in the world.”
Human rights are defined against or at least with respect to the powers of the state. They are “international norms that help to protect all people everywhere from severe political, legal, and social abuses.” More often than not, human rights are meant to protect individuals and minorities from governments and majorities.
Human rights are often defined in the negative, that is to say, they often define what may not be done to individuals. The basic rights of right to life, liberty and security of person are rights not to be interfered with in certain ways. Such rights are defined as limits upon the powers of the state, articulated after a World War in which it had become clear to all the world that state-sponsored brutality had plumbed new depths of barbarism.
The declaration also defines political and civil rights. Although defined in legal terms, these rights are universal, whether or not they have been enacted in any particular jurisdiction.
The declaration defines political, civil and social rights but also rights to a certain standard of living (Article 25) and to education (Article 26).
The language of human rights is legal and abstract, but the human dignity and equality it aims to uphold take shape in the real world through institutions and practices. The fundamental rights it champions must be enacted and protected by the organs, arms and agencies of the state. The substantive rights it guarantees must be delivered by government.
Human rights thus require a framework of good government in order to be more than paper guarantees.
Whatever the specific features of the government under which people live, their human rights will not be assured without the government itself abiding by certain basic principles, and being subject to the rule of law.
Let me just draw on some examples from my experience.
The tender committee
One of the basic functions of government is stewardship of the resources of a nation. In truth every nation has the natural, cultural and human resources to provide for the basic wellbeing of all its citizens. Even in famine, people usually starve not because there is not enough food in the country as a whole, but because their entitlements to it have broken down. In an age of abundance, poverty and shortage are social and political rather than natural problems. There is no evading our common responsibility for them. Where people are in want, weak government is almost always at the heart of the problem.
The government’s ability to provide for the basic necessities of its citizens is directly tied to its ability to be a transparent custodian of the nation’s resources. This custodianship is expressed through good practices. These good practices are only sustainable in an ethos of trusteeship.
Malaysia has suffered a worrying decline in both.
Let me cite some examples.
The tender committee
Of late in Malaysia it has become common to speak of the “negotiated tender”, the “direct nego.” When this term first started being bandied about in the 1980’s I couldn’t understand it. It had never existed before in our system of government.
I do not understand what kind of legal loophole was employed to make this aberration the new norm in government procurement.
What I do understand is that since Independence in 1957, and up to the time I served as Minister of Finance, the open tender was about the only way the government could procure anything.
It was ingrained in the civil service that all government procurement must be done in a visible manner and with the proper controls to ensure independence and effectiveness in procurement.
The Ministry of Finance ensured that all procurement was done through a system of tenders.
In the first instance, any tenderer must be pre-qualified and any submission must conform with specifications laid down by the technical and financial committee in consultation with prospective users.
Vendors had to be pre-qualified before they were allowed to submit a tender.
Thereafter their submission must meet basic specifications.
The tender committee was formed and managed with the utmost concern for independence. The committee would sit at a moment’s notice when the government had something to procure. All tender documents were coded and distributed to the members of the tender committee first thing in the morning. The members were isolated and given three or four hours to study the documents. Technical and financial advisors would be on hand to explain the technicalities to the decision-makers.
Immediately after the committee had decided, their decision on who the contract had been awarded to would be conveyed not only to the people who had participated in the tendering process, but to the public.
I have belaboured the details of the process because the details represent careful controls and checks through which the government exercised its custodianship of public resources. The committee was given no advance notice, was physically isolated, and had to work quickly in order to prevent communication with interested parties. The results had to be announced publicly immediately to prevent retrospective interventions with them.
Secrecy and publicity were deployed to ensure the integrity and transparency of the process. Contrast the uses of secrecy today, backed by the Official Secrets Act, to prevent the public from knowing how much has been stolen from them and by whom.
Public service as trusteeship
Good practices do not exist in a vacuum. They can only be applied by public officials who have had it ingrained in them that they hold their positions in trust for the entire rakyat. Not for themselves, their party or their community. Good practice in public service requires an ethos of public service as trusteeship.
My late father was a senior government official. He had an official car given by the government. He never used the car to go to the club, nor would he allow us children to go to school in it. If we had to go by car, we went in his personal car. If he must go to the club, he would come home and change cars and drivers, so that car and driver were personal. The car belonged to the government and the petrol in the car was paid for by the government. If you went for private function you used your own petrol and was driven by your personal driver.
I can remember being in his official car once. I jumped into it to go to the Sultan’s birthday celebration parade. He relented because he was going to an official function. What a thrill. He was very strict about these things.
Later, whether in business or government it was unthinkable for me not to apply the same practices. These practices were a kind of basic hygiene as unremarkable and ingrained as the habit, say, of washing one’s hands before a meal.
My experience was typical of public servants of my generation. Those of you acquainted with retired senior civil servants will recognize the type of person I am talking about. They lived and breathed this ethos.
Now we see politicians using official vehicles with no regard and indeed no understanding of the distinction between private and public assets. Their wives go shopping in government transportation.
I have gone on about these details because faithfulness in small things begets faithfulness in large things. It is in the details that the spirit of trusteeship is cultivated and passed on.
Public trusteeship and human rights
What is the relevance of this to human rights?
Good practices and a strict ethos of trusteeship in respect of public assets is important because they are a safeguard against corruption, and the biggest challenge to the full enjoyment of human rights by all in Malaysia is corruption.
As a result of corruption, stadiums collapse, bridges fall down, people die unnecessarily on roads not built to specification. As a result of corruption, communities and individuals in our midst suffer malnutrition, are deprived of education, are trafficked like slaves, die in official custody. As a result of corruption, the voiceless are exploited or neglected: vulnerable children, migrant workers, Orang Asli, and the interior-dwelling people of Sabah and Sarawak.
The people who bear the highest responsibility for this crime are people in high positions, both official and commercial, engaged in an elaborate game which in reality is simply about stealing public assets. These are people who expect and exact respect from the public, when their deeds costs people their livelihoods, their health and their lives, diminishes human prospects, blights the future of our children.
The rule of law and human rights
The most important safeguard of human rights is the rule of law. The ultimate safeguard of our human rights in Malaysia is the Constitution. A Constitution is a living thing only when it is instutionalised as a living practice. It needs judges, public officials and civil society who are committed to upholding and protecting it without fear or favour.
When the Constitution is ignored or contravened by the Government of the day, and by officials sworn to uphold it, this foundational institution is injured, the rule of law is undermined, and there is a little less standing between each Malaysian and the barbarism against which the Universal Declaration was proclaimed.
Our Constitution was flouted in Perak this year when its legitimate government was replaced by unconstitutional and undemocratic means. This was a violation of the rule of law. As this action was promoted and endorsed by the highest authorities, it damaged the people’s confidence in the rule of law, in democratic governance and in our constitutional monarchy.
The Universal Declaration on Human Rights which we celebrate today draws on the searing experience of the Great Wars of the twentieth century. An unforgettable impression left by that war is that the tissue between ourselves and barbarism is thin indeed, woven from the fragile thread of values, institutions and practices.
The Universal Declaration expresses the inherent dignity of the human person, and declares his inalienable right to life and liberty in the language of human rights. Those values are ancient and near universal, but the modern language of rights is now indispensable for discussing them.
Our founding Prime Minister, the late Tunku Abdul Rahman, understood this. He had wanted to have the UNDHR inserted as a supplement to our Constitution. I am not sure what prevented him from doing so, but it is clear from his conduct and from his statements that he shared its ethos. The “founding fathers” of this young country, who were of the generation that saw the founding of the UN and the formulation of the Universal Declaration, shared this ethos. To remind ourselves of the spirit in which we began, and the ethos we must now fight to recover, I would like to end with the beginning of the speech that Tunku gave upon the formation of Malaysia on September 16, 1963:
THE great day we have long awaited has come at last – the birth of Malaysia. In a warm spirit or joy and hope, 10 million people of many races in all the States of Malaya, Singapore, Sarawak and Sabah now join hands in freedom and unity.
We do so because we know that we have come together through our own free will and desire in the true spirit of brotherhood and love of freedom.
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*Speech delivered at a seminar on human rights organized by the UNDP on Dec 8 at the Renaissance Hotel, KL
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