Some of the country’s top judges must be included among the drafters of the National Human Rights Action Plan (NHRAP) to ensure that Malaysia would have a clear policy on human rights, said prominent lawyer Muhammad Shafee Abdullah.

"One or two of them (Federal Court judges) must be there," he told a seminar in Kuala Lumpur on the NHRAP today.

"The problem with our country is, when human right matters go to the highest court, they do not interpret it the way we anticipate them to," he said.

He lamented to an audience of mainly civil servants that he had recently dealt with the appeal of a death row prisoner in the Federal Court.

He said the prisoner has already been on death row for 13 years and eight months, in which none of the delay was of his own doing.

He explained to the audience that when a person is sentenced to life imprisonment, which amounted to 20 years at the time, the convict could end up serving 14 years, with the remaining one-third given as remission on account of good behaviour.

In his argument to the Federal Court, he said it would be a 'cruel and unusual punishment' to have the prisoner serve the equivalent of a life sentence, and then hang him. Therefore the prisoner should be released, whether or not he is guilty.

He based his argument on Section 4(4) of the Human Rights Commission of Malaysia Act 1999 (Suhakam Act).

"Under Article 5 (of the Federal Constitution), it says right to life cannot be taken away, save for in accordance to the law. What is the law?

"The law here is Section 4(4) (of the Suhakam Act), which says you have must have regard for the Universal Declaration of Human Rights (UDHR), and the UDHR says you cannot have cruel and unusual punishments.

"So I said, 'Based on that, can you (the court) now declare the almost 14 years that this man has served is sufficient, and he ought to be released forthwith," he said.

In full, Section 4(4) of the Suhakam Act reads, "For the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution."

Taken aback

Meanwhile, Shafee told his audience that the judges were taken aback by his argument but didn’t dare to venture into international law.

"The Federal Court recognised the strength of the argument, but they were not willing to cross the hurdle, to go into international law – What is ‘cruel and unusual punishment’ and what the UDHR says," he said.

On his part, Shafee as the chairperson of the Asean Intergovernmental Commission on Human Rights (AICHR) said he has urged Asean member states to also engage their own top judges on human rights issues.

He said he had told them that otherwise, all the AICHR’s efforts including the Asean Declaration of Human Rights would be for nought.

The AICHR would also be holding its first judicial symposium next month, he said, involving top judges from all 10 Asean member states.