Human Rights Day just passed a few days ago. It is an opportunity to reflect on what 'human rights' mean, and where does Malaysia stand in this area.

The concept of 'human rights' is an ideology of standards. An 'ideology' has been defined by the Concise Oxford Dictionary of Current English as the "science of ideas", a "visionary speculation" and as "ideas at the basis of some economic or political theory or system". It started as a formal body of general principles post-1945 after the world bore witness to atrocities committed by Nazi Germany during the horrors of World War II. This is written in the Preamble to the Charter of the United Nations to remind us that inequality and discrimination of men and women of different colour and creed can never have a place in our world social order:

"We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom "

The Preamble to the Universal Declaration of Human Rights is set in similar context:

"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, "

Much has been achieved

Despite being a relatively young movement of 61 years old, human rights has achieved much. It survived communism with the fall of the Berlin Wall in 1989, it galvanised legitimate political contestations around the world such as the anti-apartheid resistance in South Africa, it is propelling a raft of international obligations on states to respect and promote the rights of their own citizens and others, it is at the core of the responsibility to protect discourse in the United Nations where states submit themselves to criticisms of independent experts and bodies, and it is empowering local communities to articulate claims and stand up to oppression and abuse by their governments. Prof Ralph Steinhardt has said that the recent decision in Hamdan v Rumsfield is evidence that human rights is more powerful than the greatest military force in the world, the United States of America.

Human rights norms cover a broad spectrum of important matters on the menu of our daily lives civil and political, economic, social and cultural concerns administered by internationally accepted treaties such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. To meet new challenges, the elaboration of these norms and clarification of existing standards are being shaped daily. For example, in 2003, human rights found its way into regulating business practices of transnational corporations, and on Dec 13, 2006 after more than four years of drafting meetings and negotiations, the landmark Convention on the Rights of Persons with Disabilities is due to be adopted by the United Nations General Assembly. It is aimed at protecting the rights and dignity of about 650 million persons with disabilities.

The developing nuances of human rights law rests on the flexibility of their sources. Article 38 of the State of the International Court of Justice identifies the following as applicable:

international conventions establishing rules expressly recognised by contesting states (ie, treaties, declarations or agreements signed between states)

international custom as evidence of general practices accepted as law

general principles of law recognised by civilised nations

judicial decisions and teachings of the most highly qualified publicists of various nations

The jurisprudence which emanates from these sources continues to guide the expansion of rights law, and is a useful resource in their elucidation.

The paradox of implementation

"Speaking rights to power" is the term usually ascribed to advocating the language of human rights with ruling governments of the day. It includes the creation of rights awareness, fact-finding, litigation and redress assistance. A necessary component of human rights work is extensive lobbying initiatives with governments. This manifests the paradox of implementation. Whilst the biggest violators of rights continue to be governments in power, key implementers of rights governance lie with the same governments. This clash ensures a careful line is drawn in the lobby work of rights groups.

The emphasis in Malaysia has substantially been on domestic implementation, but increased resort to international mechanisms in the United Nations is becoming quite common through for example, the submission of reports to an expert body set up under the Convention on the Elimination of All Forms of Discrimination Against Women. Governments are expected to defend their rights records when their reports are scrutinised, and where applicable, state parties are expected to procure legislative changes to domestic laws of their countries in conformity with their international obligations. Domestic human rights organisations are also heard and allowed to file "shadow reports" in rebuttal. This form of check and balance has been effective. Further, the hopeful establishment of the Asean Human Rights Mechanism will allow complainants an intermediary tier on a regional level where their complaints may be dealt with.

Debunking the myths

Human rights empowers people, and cuts back on state excesses. Politicians and governments are interested in resisting the articulation of rights because it will necessitate greater demands for their accountability. In the debate about rights particularly in the 'Asian context', myth-making has been rife. It is imperative that certain general misconceptions about human rights are debunked:

Human rights is a 'Western' idea not applicable in Asia. A simple test only needs to be carried out where an American and an Asian are separately asked to list ten things they would consider as necessary in their lives. Albeit expressed in different terms, one would find their lists matching in concurrence with most of the rights in the Universal Declaration of Human Rights!

Human rights is an unattainable set of principles, and which are unenforceable. Developments around the world such as the United Nations' treaty-reporting systems, Charter-based complaints mechanisms (through Economic and Social Council's procedures 1235 and 1503), jurisprudence emanating from regional human rights courts (in Europe and the Americas), enforcement of ratified rights norms in domestic courts, and political pressure resulting in subsequent legislative interventions by erring states describe an entirely different story.

Human rights is only about litigating cases in the courts. As illustrated above, human rights work is not plainly about litigation. The most effective strategy is chosen, and sometimes there is a plurality of approaches. Litigation is usually the last resort, after all means have failed.

Human rights is a carte blanche for extreme abuses. Rights standards are merely minimum values which every state and non-state actor must respect and promote. There are certain restrictions to some of these standards carefully circumscribed, and expected to be enforced. Human rights is not an excuse for extremities, and the challenge is one of where the line ought to be drawn.

Law necessarily promotes rights values. This is untrue. The discriminatory legislation enacted in Nazi Germany and apartheid-South Africa were laws validly passed by the governments. While the law does not necessarily promote human rights, the rule of law does, along with its attendant notions of justice and equality. The objective is to ensure that the substantive content of laws passed necessarily conform to international human rights standards.

There is nothing which can be done to improve the human rights situation in Malaysia. This is the defeatist attitude usually taken in the face of the mighty state machinery. For years now, the struggle for a better Malaysia has always been on the agenda of its peoples. The fight is a never-ending one, but it is a worthwhile immersion. Lawyers, non-governmental organizations, civil society organisations, national human rights institutions and the people themselves have had successes in many areas, within and without the country. There is little reason to be disheartened so long as the struggle is a sincere and genuine one.

Malaysia's game an overview

Human rights in Malaysia is nothing new. It may have been packaged differently under our Federal Constitution in 1957 and called 'Fundamental Liberties' under Part II but it substantially mirrors most of the rights granted under international law:

right to life and personal liberty (article 5)

right to equality and non-discrimination (article 8)

right to freedom of speech, peaceful assembly and association (article 10)

right to profess, practice and propagate religious beliefs (article 11)

right to non-discrimination in education (article 12)

right not to be deprived of property without adequate compensation (article 13)

This is not surprising, and it is definitely not alien to speak about international rights law vis--vis our Constitution. International law of course goes further than our Constitution in many ways, and there is a need for greater acceptance of these international concepts by the Government and Judiciary; but the continuous process of engagement currently on foot between rights advocates and the authorities bodes well for the nation. The next crucial step forward for the Government is to ratify international treaties such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention Relating to the Status of Refugees.

The dilution of our fundamental liberties by Parliament and the silent re-writing of the Constitution by our Judiciary is a worrying trend. There have been no additional categories of rights accorded in our Constitution or existing ones read in a wider fashion despite the exhortation in Dato' Menteri Othman Bin Baginda & Anor v Dato' Ombi Syed Alwi Bin Syed Idrus that our Constitution should be read "with less rigidity and more generosity". The reverse has in fact occurred.

With Malaysia's ratification of the Convention on the Elimination of All Forms of Discrimination Against Women requiring her to submit reports to the Committee on the Elimination of Discrimination Against Women, we have witnessed the judgment of our highest court in Beatrice a/p A.T. Fernandez v Sistem Penerbangan Malaysia & Ors being subject of some criticism for violating international law. The necessity to criminalise marital rape, and to substantially reduce reliance on Sharia principles with the goal of eliminating gender discrimination are also borne out in the comments of the committee to Malaysia. She is now required to look into the committee's recommendations, and accordingly reform Malaysian policies and legislation where applicable. In the long-run, this form of implementation is effective as it allows the process of dialogue and engagement to take its course as opposed to other forms of confrontational methods. After all, rights advocates recognise the essentiality of ownership of rights norms, and respect the sovereignty of governments as the way forward in the promotion of rights.

Unfortunately, an overview of Malaysia's current civil and political rights record will evidence the following:

the use of emergency laws in cases of non-emergencies

the practice of arbitrary detention without trial

the retention of the death sentence in certain capital cases

the violation of free speech, peaceful assembly and association rights

the toleration of custodial deaths and police brutality

the reinforcement of the Executive's dominance over the Judiciary

the pursuit of policies of religiosity and religious homogeneity

the long-term maintenance of affirmative action policies for the majority based on the criteria of race

Further, the much-vaunted Royal Commissions on the police set up have had modest achievements and effect, save for enchanting the media and opportunities to spout rhetoric. Concrete proposals made therein have largely been ignored. Anecdotal evidence that the Commissions were set up to "buy time" or give an appearance of responsiveness by the Government is holding true.

What can we do?

Firstly, we have to change our mindsets. It is the deeply-ingrained culture of ambivalence and apathy which has to be discarded. We need greater participation, and it is wrong to think that our individual participation makes no difference. Activism takes different forms, and writing a letter of appeal to the Government to call a stop to abuses is probably the simplest act.

Structures and processes are also important. Platforms such as the Malaysian Bar, human rights bodies and local community associations are important, and they need good, diligent activists. It is very easy to criticise and destroy, but difficult to constructively build and work in areas of reform that matter.

It is nevertheless worth remembering that human rights is not so much about arguing over laws or regulations than positing oneself in the place of those in need, and asking what can be done. A failure to do this is a failure to understand the rights agenda.