If human rights are not to turn completely useless...

Malaysiakini 
by Roger Chan Weng Keng

The May 29 issue of the News Straits Times carried a full page report of a press conference, where Tunku Abdul Aziz Tunku Ibrahim was reported to have said: "When people talk about a Malaysian Spring, I get worried because these people are totally irresponsible. In other words, they are saying, ‘let's burn down the buildings, let's kill people..." 

This rather presumptive statement is an amplification of his earlier objection to the Bersih 3.0 rally on the grounds that it would encourage people to break the law. 

The first point I like to make here is political allusions take place in every civil society as a matter of inspiration without having to copy others. The second is, borrowing a political idea need not mean recreating a revolution of others. 

The British for example drew inspiration from the French Revolution to develop the concept on the Rights of Man, when they were seeking reforms for which there were no historical precedents. 

Conceding his right to free speech, I still say that Tunku's position constitutes incompleteness in terms of a fundamental misunderstanding of the law and the higher demands of applicable human rights.

Flaw in disobeying laws arguments

The legal positivist approach to any transgression of laws in our country strikes one as being incomplete in terms of missing out on the supranational laws founded upon the Universal Declaration of Human Rights adopted by the United Nation General Assembly on Dec 10 ,1948, and the various international covenants and human rights instruments. 

This is not to say that a positivist approach to law enforcement is questionable under any circumstances. 

Shorn of an in-depth analysis, it shouldn't be because any civilised person would be sensible enough to argue that whoever breaks the law would have to face the consequences, as there are institutions in the country to embrace and discharge their respective role of enforcement, such as the police force or the courts for that matter. 

However, this seemingly palatable argument to uphold the law and appeal to legal rights could misrepresent the true character of human rights, and has dangerous implications depending on how a particular context is played out. 

From ordinary malfeasance cases like house-breaking, affray, shop-lifting to more heinous crimes like rape or robbery, the police have a proven capacity to deal with it whether the impinged act was perpetrated by an individual or a group. 

However, when the context played out is about human rights, then a mammoth rally to take upon a cause of an issue such as clean and fair elections, means that the participants are appealing to their human rights since historically the whole rationale of human rights is to criticise legal authorities such as an election commission or a government or laws that violate human rights. 

We appeal to these rights precisely because the government of the day fail to take cogent steps to address them, as they should as trust of the people. 

So when the collective consciousness of human rights assumed its rightful place in the convergence of hundreds of thousands of minds and bodies in Kuala Lumpur on April 28, the police role was expected to be one of cooperation and assistance, such as dealing and facilitating peaceful assemblies instead of frustrating them.

That sense of cooperation included being able to handle legal transgressions professionally like the breaching of a barricade, the overturning of a police vehicle or taunting of police personnel because these were group-centric activities and not that of rally participants.

I must say that this sort of transgression-responsibility role of the police has a direct bearing on any temptation by detractors of human rights in readily interpreting and magnifying the smallest incident of violence in a rally. 

It also has a bearing on wiseacres professing that violence is a bound-to-happen thing like a sort of collateral damage of a Rumsfeldian character in times of war. 

In this context the prime minister's speech in London recently seems to conclude too fast that street demonstrations will inevitably lead to trouble.

We need to understand fundamentally that human rights came about as results of the horrors of the Second World War. 

It is because peaceful assemblies have been euphemised as street demonstrations that it is possible to usher in the spectre of trouble. Otherwise trouble has no logic.

Implications in state of human rights

The general ‘don't-break-the-law' argument as a protective shield used to actually deny instead of advancing the rights of others, is the one I wish to advocate. 

On this model, it comes in diverse forms or manner but essentially maintaining their identical effect in ways that restricts the space for the implementation of human rights in Malaysia. 

It is tempting and possible to introduce a kind of presumptive theory of human-rights deniers (HRD) to explain failure to consider human rights perspectives or understanding, such as the failure to see the contrast that on prima facie evidence alone alleged police brutality were orders of magnitude higher than the alleged transgressions that took place (for which police were in a position to handle) during the height of the Bersih 3.0 rally.

With that, I shall push on. 

Tunku Aziz sort of expounded his ‘don't-break-the law' conjecture (DBTL conjecture) in a human rights context of the Bersih 3.0 rally. ( I call it a conjecture partly because it is still not evidentially proven to elevate it to the status of a theory as yet despite claim to the contrary and partly because I argued earlier that collateral or isolated incidents of individual or group-centric transgressions are matters that the police are well-equipped to handle). 

This conjecture spread like a cold virus coming later in different versions and varieties carried by others. 

For one it is intriguing to see accolades coming from the Barisan side of the political divide as though to claim Tunku Aziz as one of their own, and a figure to emulate.

In almost similar vein Wong Chun Wai in his article 'Speak up against disgraceful behaviour' (The Star, May 27) did emulate, but his argument for good behaviour like the DBTL conjecture, missed two important points namely a complete abandonment of the human rights perspective as a minimal standards of human dignity and the ability of those entrusted with the bounden duty to enforce law and order without trampling on fundamental human rights of others. 

By the time his ‘good behaviour' argument could settle down, note that another strain of the DBTL conjecture has already mutated and evolved like some kind of a genetic drift. 

Ex-prime minister Dr Mahathir Mohamad was reported to have said Bersih 3.0 is Pakatan Rakyat's warm up for ‘violent demonstration' should it fail to win the next general election (Malaysiakini, May 25).

Ex-IGP Tan Sri Rahim Noor alleged in the Malaysian Insider on May 20 that Bersih 3.0 used "Marxist" tactics echoing similar sentiments of his predecessor Hanif Omar.

Then another ex-IGP whipped up a yet similar conjecture that Bersih 3.0 is a coup d'état attempt to overthrow the government.

DBTL virus, mutates, spreads

Yet another strain of DBTL conjecture found its way to the Malaysian Bar that, on May 11, 2012 passed a resolution condemning police brutality by an overwhelming majority. 

This was when another minister, Nazri Aziz had agreed to look into forming a second Malaysian Bar on the ground that the Bar Council is behaving like an opposition party, (The Malaysian Insider, May16) though his proposed move was later restated differently by the deputy prime minister but not in complete reversal.

The ubiquity of DBTL conjecture virus passed on another strain to burger selling and ‘butt exercising' in front of somebody's house.

Apparently in this regard people have noticeably stopped short of arguing from religious principles or on grounds of moral philosophy, as the whole nation seems to be embroiled in a debate about the right or wrong of such actions. 

And this is in spite of the fact that we have established institutions to deal with all the issues raised in connection with it.

The list of the aforesaid implications can go on and on if we train our powers of observation on the day-to-day news of the Bersih 3.0. rally.

There are important values in human rights which cannot be ignored. How well we live in a society such as freedom from want or fear will determine the level our well-being. 

That level of well-being is derived from an expectation of minimum standards of good government. 

In this it is an inalienable right for every citizen of Malaysia to have a government which must listen to the very problematic issues concerning electoral reforms, and take immediate steps to fulfil their common aspirations for a fair and clean electoral system. 

In a larger human right sense that is the foundation of freedom, justice and peace for this country.

Telling others to behave by not breaking the law is a good, moral thing to do but not by carefully and systematically nurturing a sense of fear and not raising awareness on our human rights. 

It is likened to a political trickster who is not candid to the people, hence a betrayal of people's trust. 

Telling people about communism infiltrating into our system is not going to help either because sooner or later people are going to find out, just like the American electorate eventually found out about George Bush's lack of candidness over his illusory war on terror.

Taking a defensive posture by proposing an alternative Bar is bad. It reflects on the failure to understand institutions and the principles and mechanisms upon which they operate. 

Regardless of whether a particular institution is the Bar, imagine the impoverished view that each time an institution is perceived to be functioning in biased fashion, we change it. 

I can't imagine what will be the exact ramifications if we do such thing but one thing I can be quite sure: that could be a first step in the wrong direction in dismantling long cherished but valued human rights institutions.

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ROGER CHAN WENG KENG is the deputy chairperson of the Bar Council Human Rights Committee. He is also the co-chairperson of the Bar Council Environmental and Climate Change Committee. The views in this article are the author's personal views and not necessarily that of the organisations he represents.