CHAPTER 11CHAPTER 11
INTERNATIONAL HUMAN RIGHTSINTERNATIONAL HUMAN RIGHTS
DR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID
11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMAN
RIGHTSRIGHTS [Textbook, p. 339][Textbook, p. 339]
• The crux of international human rights law: to
afford legal protection of every human being on
the planet earth.
• “All individuals, solely by virtue of being human
beings, have rights which no society or State
• Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
11. 1.111. 1.1 Categorisation of human rightsCategorisation of human rights
Human rights are generally divided into three main
(1)civil and political rights;
(2) economic, social and cultural rights; and
(3) group or peoples’ rights.
They are often confusingly expressed in terms of
“generations” of human rights: the first, the
second, and the third generation respectively.
Civil and political rightsCivil and political rights
• Civil and political rights (freedom of
expression, freedom of peaceful assembly,
freedom from torture, freedom from arbitrary
arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
Locke, Rousseau and others.
• They protect against encroachments of
• These rights have traditionally been given
priority by Western States.
Economic, social and cultural rightsEconomic, social and cultural rights
• Economic, social and cultural rights (e.g.,
right to work, right to education, right to access
to health care) attained recognition in the
twentieth century with the advent of socialism.
• They argued that achievement of economic and
social rights was a pre-condition for other rights.
• That is, until the economic and social rights were
realized a State was not in a position to provide
civil and political rights.
Group or peoples’ rightsGroup or peoples’ rights
• Group or peoples’ rights emerged as recently
as the 1970s and are supported by developing
• The focus is on collective as opposed to
• The right to development and the right to self-
determination are two main examples.
• In the early 1970s, thanks to their numerical
superiority, the developing countries managed to
elaborate their own philosophy of human rights.
184.108.40.206.2 Universalism and CulturalUniversalism and Cultural
• The question of the ‘universal’ or ‘relative’
character of the human rights has been a source
of debate from the beginning of the human rights
• The proponents of the “universalism” claim that
international human rights like rights to equal
protection by law, physical security, freedom of
speech, freedom of religion and freedom of
association are and must be the same
• Advocates of “cultural relativism” claim that most
(or some) rights depend on cultural context, the
term ‘culture’ being used in a broad way to
include political and religious ideologies and
• Hence notions of right (and wrong) necessarily
differ throughout the world because the cultures
in which they take root differ.
• On their face, human rights instruments are on
the ’universal’ side of this debate. The landmark
instrument is the Universal Declaration of
Human Rights (UDHR).
• The two Covenants (ICCPR, ICESCR) also
speak in universal terms: ‘everyone’ has the
right to liberty, ‘all persons’ are entitled to equal
• To the relativists, these instruments are the
indicators of the so-called ‘cultural imperialism’
of the West.
• During the Cold War, such debates were mainly
between the Communist and the Western.
• The West charged the Communist world with
violating many basic rights of a civil and political
character. The Communist world charged the
West with violations of the more important
economic and social rights.
• Today the universal-relative debate takes place
primarily in a North-South (or West-East)
framework between developed and developing
11.1.311.1.3 The Islamic perspective of humanThe Islamic perspective of human
• Islam has its own values and standards of
human rights, founded on ‘Shari’ah’, the
Divine Law, the essence of which is
absolute submission to the Will of God
• However, it appears that Islamic jurists are
divided on how to interpret the original
sources of Shari’ah.
Reformists and traditionalistsReformists and traditionalists
• Ijtihad: Whether the door for ijtihad has
been closed or not.
• Traditionalists: must strictly follow the
• Reformists: should not interpret the
original sources literally but consider the
rationale behind the revelation in question.
Islamic values versus Human rights instrumentsIslamic values versus Human rights instruments
• Human rights instruments are mainly based on
• There are arguments that Islamic values conflict
with some norms of the human rights
instruments (esp. in respect of family law, the
notion of Qawama (guardianship and authority),
the notion of al-hijab, and the law of apostasy).
• To counter these, many Islamic jurists rely on
the concept of cultural-relativism.
The practice of Islamic countriesThe practice of Islamic countries
• Although most of the Islamic countries apply the
Western legal systems in the field of public law
(with the exception of a few, like Saudi Arabia;
countries like Pakistan is practising hudud law),
their family laws are based on Shari’ah.
• When these countries adopt human rights
instruments, they find that some of the
provisions are in conflict with Islamic law.
The practice of Islamic countries [Cont.]The practice of Islamic countries [Cont.]
• In view of this, they made reservations when ratifying the
Convention on the Elimination of All Forms of
Discrimination Against Women, 1979 (CEDAW), and the
Convention on the Rights of the Child, 1989.
• Some of the Western countries make objections to these
reservations on the ground that they are not compatible
with the purpose of the Conventions.
• Islamic countries are on the horns of a legal dilemma.
• See: Abdul Ghafur Hamid, “Reservations to CEDAW and
the Implementation of Islamic Family Law: Issues and
Challenges”, (2006) Asian JIL, vol. 1 No. 2, 121-155.
Conference Paper, International Conference on Islamic
Family Law (2006).
11.3 The evolution of international human11.3 The evolution of international human
rights lawrights law
The concept of the international protection of
human rights is revolutionary in nature given the
fact that the traditional doctrine of international
law had no place for it at all.
The turning point for this change of the paradigm
is the Charter of the United Nations, which is
usually referred to as the starting point for any
study of the protection of human rights.
11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter
• Preamble: reaffirmed their “faith in fundamental
human rights, in the dignity and worth of human
person, in the equal rights of men and women”.
• Article 1: the achievement of international
cooperation “in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion”.
• Also Arts. 55 and 56 (All members pledge
themselves to take joint and separate action).
• Some argue that the human rights clauses of the
Charter do not impose any legal obligation on
member States with regard to their own
• The better view, however, is that the use of the
word “pledge’ in Article 56 implies a legal
obligation, although the obligation is weak in
view of the fact that there is no enumeration in
the Charter of the fundamental human rights
which are to be observed by States.
11.3.2 The Universal Declaration of Human11.3.2 The Universal Declaration of Human
• The General Assembly adopted of the Universal
Declaration of Human Rights on 10 December 1948.
• Two main categories of human rights, namely: civil and
political rights [Articles 3 to 21] and economic, social and
cultural rights [Articles 22 to 27].
• Many laymen imagine that States are under a legal
obligation to respect the rights listed in the UDHR. It is
• As it is not a treaty, the Declaration as such is not legally
• It is simply a list of human rights which member states
‘pledge’ themselves to promote under Articles 55 and 56
of the Charter.
• In spite of its limitations, the Declaration is of
great importance in stimulating and promoting
the international protection of human rights.
• It has impact in shaping subsequent treaties on
human rights, and upon the content of the
constitutions of new States.
• It is possible that at least some part of the
Declaration, like the prohibition of torture, may
subsequently have become binding as a new
rule of customary international law.
International human rights treaties and theirInternational human rights treaties and their
ratification statusratification status
Convention …………….. State parties
• ICCPR 164
• ICESCR 160
• CEDAW 185
• Convention on the Rights of the Child 193
• Convention on Racial Non-Discrimination 173
• Convention against Torture 146
• Genocide Convention 140
11.3.4 The International Covenant on Civil and11.3.4 The International Covenant on Civil and
Political Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)
• As UDHR is not legally binding, States strived for
adopting binding international conventions on human
• The International Covenant on Civil and Political Right
(ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) were finally
adopted by the GA on 16 December 1966. Both came
into force in 1976.
• As of now, there are 164 State parties to the ICCPR and
160 States parties to the ICESCR.
• Both Covenants contain a common article (Article 1)
reaffirming the “right of self-determination”.
Obligations of States partiesObligations of States parties
• Art. 2(1): “to respect and to ensure to all
individuals…the rights recognized in the present
• Art. 2(2): “to undertake the necessary steps to
adopt such legislation or other measures as may
be necessary to give effect to the rights
recognised in the Covenant.
• Art. 2(3): “to ensure that any person whose
rights are violated has an effective remedy,
notwithstanding that the violation has been
committed by persons acting in an official
Art. 4: emergency threatening the existence of theArt. 4: emergency threatening the existence of the
1 . In time of public emergency which threatens the life of
the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations
under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations
under international law and do not involve discrimination
solely on the ground of race, colour, sex, language,
religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
Human Rights Committee (HRC)Human Rights Committee (HRC)
Art. 28Art. 28
• The Human Rights Committee has 18 members.
• It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all State
parties are obliged to present reports (initial and period)
indicating compliance with the ICCPR;
(2) Optional inter-State complaints procedure; and
(3) Individual complaints procedure.
OptionalOptional inter-State complaints procedureinter-State complaints procedure
[Art. 41][Art. 41]
• A contracting party may, on condition of reciprocity,
accept the right of the other contracting parties to bring a
claim to the HRC alleging a violation of the Covenant by
• Negotiations between the two parties must have been
completed without success.
• If satisfied that local remedies have been exhausted, the
Committee shall make available its good offices.
• The Committee must, within twelve months, submit a
report, which is not legally binding.
Complaints by victims of human rights violationsComplaints by victims of human rights violations
First Optional ProtocolFirst Optional Protocol, 1966, 1966
• The most significant monitoring mechanism is
the individual complaints procedure under the
First Optional Protocol to the ICCPR, 1966.
There were 107 Parties to it.
• The victims of human rights violations, if they
have exhausted all available domestic remedies,
may submit a written communication to the
Committee for consideration.
• There is also a Second Optional Protocol
which deals with ‘abolition of death penalty’.
11.3.5 International Covenant on Economic, Social11.3.5 International Covenant on Economic, Social
and Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)
• The ICESCR provides for the right of self-determination
for all peoples, the right to work, the right to form trade
unions and to strike, the right to social security, the right
to an adequate standard of living, the right to health, the
right to education and the enjoyment of certain cultural
• Art. 2 (1): “each State Party undertakes to take steps…
to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative
ICCPR and ICESCR: compare and constrastICCPR and ICESCR: compare and constrast
(1) Obligation of state parties:
(a) The obligation under ICESCR is very
general and limited to ‘taking steps’ with a view
to ‘achieving progressively the full realization
of the rights’ whereas ICCPR imposes a more
stringent obligation on States ‘to respect and to
(b) The obligation under ICESCR is also
limited To the maximum of its available
(2) Favourable condition for developing countries:
A significant feature of the ICESCR is that
developing countries, with due regard to human
rights and their national economy, may
determine to what extent they would guarantee
the economic rights recognized in the Covenant
to non-nationals. [Art. 2(3)]
(3) Individual complaints procedure: There is an
Optional Protocol to the ICCPR establishing
individual complaint procedure while there is no
such procedure in ICESCR.
11.3.6 The Convention on the Elimination of All11.3.6 The Convention on the Elimination of All
Forms of Discrimination Against Women 1979Forms of Discrimination Against Women 1979
• Adopted by the GA on 18 December 1979 and entered
into force on 3 September 1981.
• 185 States Parties.
• Malaysia acceded to CEDAW on 5 July 1995.
• CEDAW Art. 2: To embody the principle of equality of
men and women in their national constitutions or other
• Art. 8 (2) of the Federal Constitution was amended (in
2001) to guarantee gender equality.
• The Convention establishes a Committee on the
Elimination of Discrimination against Women (CEDAW),
which consists of 23 independent experts as members,
to monitor its implementation.
Reservations to CEDAWReservations to CEDAW
• Out of 185 States Parties , 57 have currently
reservations to it.
• Most reservation are made on: Arts. 2, 5, 7, and 16.
• Art. 28: A reservation incompatible with the object and
purpose of the Convention shall not be permitted.
• Especially the rights granted to women in Article 16
(regarding marriage and family relations) raised
widespread opposition, particularly from many Islamic
• Malaysia has made reservations on Arts. 5(a), 7(b), 9(2),
16 (a), 16(c), 16(f), and 16 (g).
11.3 FUNDAMENTAL HUMAN RIGHTS11.3 FUNDAMENTAL HUMAN RIGHTS
• Some of the civil and political rights, as
enshrined in the ICCPR, need to be
discussed further because they are of
Art. 6: The Right to lifeArt. 6: The Right to life
1. Every human being has the inherent right to
life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death
penalty, sentence of death may be imposed
only for the most serious crimes in accordance
with the law in force at the time of the
commission of the crime (and not contrary to
the provisions of the present Covenant and to
the Convention on the Prevention and
Punishment of the Crime of Genocide).
Second Optional Protocol to the ICCPR, aimingSecond Optional Protocol to the ICCPR, aiming
at the abolition of the death penalty, 1989at the abolition of the death penalty, 1989
[70 States parties][70 States parties]
• No one within the jurisdiction of states
parties to the Second Optional Protocol
may be executed and States are required
to take all necessary measures to abolish
the death penalty within their jurisdiction.
Art. 7: TortureArt. 7: Torture
• No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
• In Ambrosini v Uruguay, immediately after his detention,
the accused was subjected to various forms of torture
such as (i) being forced to remain standing for 14 hours at
a time, (ii) electric shocks, and (iii) physical blows to the
body. The Committee considered that these facts
disclosed violation of Art. (7).
• The Committee also found violation of Art. 10(1) because
he was detained under conditions seriously detrimental to
his health; Art. 9(3) because he was not brought to trial
within a reasonable time; art. 9(4) because he was denied
any effective remedy to challenge his arrest and
detention; and Art. 10(1) because he was held
incommunicado for months and was denied the right to be
visited by any family member.
Art. 9: Deprivation of liberty;Art. 9: Deprivation of liberty;
Freedom from arbitrary arrest or detentionFreedom from arbitrary arrest or detention
1. Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or
2. Anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]
• The question of arbitrariness - Art. 9(1):
inappropriateness, injustice and lack of due process of
• Bringing a detainee ‘promptly’ before a competent court -
In Kennedy v Trinidad and Tobago, the accused was not
brought before a judge until 6 days after arrest. The
Human Rights Committee (HRC) stated that delays
should not exceed a few days. In the current case, the
Committee considered that the accused was not brought
‘promptly’ before a judge, in violation of Art. 9(3).
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]
• Art. 9(4) - Habeas Corpus: This paragraph
guarantees the right of every person deprived of
liberty by arrest or detention to take proceedings
before a court, in order to determine, without
delay, the lawfulness of the detention and order
the person’s release if the detention is not lawful.
• This falls squarely within the traditional common
law writ of habeas corpus.
• Holding a person incommunicado has been
seen as an effective bar against the ability to
challenge the validity of one’s arrest, and thus in
breach of Art. 9(4).[Muteba v Zaire]
Art. 10: The rights of detaineesArt. 10: The rights of detainees
1. All persons deprived of their liberty shall be
treated with humanity and with respect for the
inherent dignity of the human person.
- Allowing visits, in particular by family
members, is a measure that is required for
reasons of humanity.
- A lack of sanitation, light, ventilation and
bedding can be treated as a violation of Art.
Art. 14: The right to a fair trialArt. 14: The right to a fair trial
1. …everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal
established by law.
2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty.
3. …everyone shall be entitled to the following minimum
(a) To be informed promptly and in detail … of the nature
and cause of the charge against him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing.
Art. 18: Freedom of thought, conscience andArt. 18: Freedom of thought, conscience and
1. Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others
and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order,
health, or morals or the fundamental rights and
freedoms of others.
Art. 26: Equality and Non-discriminationArt. 26: Equality and Non-discrimination
• Equality of treatment and the prohibition of discrimination
is a pervasive theme of the ICCPR to which reference
can be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25
• HCR has identified Art. 26 as a autonomous right, i.e., a
general right of non-discrimination which exists
independently of other rights.
• Art. 26: All persons are equal before the law and are
entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
Convention on the Elimination of All Forms ofConvention on the Elimination of All Forms of
Racial Discrimination, 1965Racial Discrimination, 1965
[173 State parties; almost universal][173 State parties; almost universal]
• Convinced that any doctrine of superiority based on
racial differentiation is scientifically false, morally
condemnable, socially unjust and dangerous, and that
there is no justification for racial discrimination, in theory
or in practice, anywhere,
• Reaffirming that discrimination between human beings
on the grounds of race, colour or ethnic origin is an
obstacle to friendly and peaceful relations among nations
and is capable of disturbing peace and security among
peoples and the harmony of persons living side by side
even within one and the same State,
Art. 1: Meaning of racial discriminationArt. 1: Meaning of racial discrimination
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions,
restrictions … made by a State Party … between citizens and non-
4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals
requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved.
Islam and non-discriminationIslam and non-discrimination
• Al-Qur’an, Surah Al Hujarat, 49: 13
“O Mankind! We created you from a single (pair) male
and female, and made you into nations and tribes that
you may know each other. Surely the noblest of you in
the eyes of Allah is the most pious of you…”
• Extract from the Prophet (SAW) ’s sermon on the
occasion of the Farewell Pilgrimage:
• “O people! Your creator is one, and you are all
descendants of the same ancestor. There is no
superiority of an Arab over a non-Arab, or of the black
over the red, except on the basis of righteous conduct.”
Islam and non-discrimination [Cont.]Islam and non-discrimination [Cont.]
• It is proclaimed in a hadith that:
“Through Islam, verily Allah has eradicated the egoism and
arrogance of the Time of Ignorance, and the [false] pride that people
took in their ancestry. For all men are descended from Adam and
Adam was made from clay.”
• It is reported that a group of Qurayshite dignitaries paid a visit to the
Prophet (SAW) and told him
“How can we sit with you, O Muhammad, while you keep the
company of such people as Bilal al-Habshi, Salman al-Farsi,
Suhayb al-Rumi, Ammar and slaves and commoners of their types?
Exclude them from your company and we will sit with you and listen
to your invitation.”
• The Prophet (SAW) refused to comply but they still requested him to
‘assign a day for them and one for us’.
• The Rightly Guided Caliphs followed the Prophet’s example as far
as equality and non-discrimination is concerned.
11.4 ENFORCEMENT AT THE11.4 ENFORCEMENT AT THE
UNIVERSAL LEVELUNIVERSAL LEVEL
• The best means of ensuring respect for a right is
to back it up with legal guarantees to be
administered by a court of law.
• In the case of human rights – no international
human rights court.
• There are only “monitoring mechanisms”, which
are much weaker than international adjudication.
• Two principal monitoring mechanisms:
(i) those set up by the UN, and
(ii) those established by international treaties.
11. 4. 1 Monitoring mechanisms established by11. 4. 1 Monitoring mechanisms established by
the United Nationsthe United Nations
• Art. 13 of the Charter: the General Assembly can initiate
studies and make recommendations on human rights
• Art. 62: The ECOSOC can make recommendations on
human rights, draft conventions, convene international
conferences, and hear reports from various bodies.
• Under Art. 68, a Commission on Human Rights was
established by the ECOSOC in 1946 (now replaced by
Human Rights Council).
• It had no authority to deal with complaints on violations of
human rights. However, subsequently, it had been
entrusted by means of resolutions of the ECOSOC and
the GA with some monitoring and enforcement functions.
Powers of Commission on Human RightsPowers of Commission on Human Rights
(a) ECOSOC resolution 1235 “to examine information
relevant to gross violations of human rights” and “to
study situations which reveal a consistent pattern of
violations of human rights”. This is public procedure.
May adopt resolutions deploring or condemning a
particular State for its breaches of human rights.
(b) ECOSOC Resolution 1503 (confidential procedure): the
communications from individuals and groups alleging
human rights violations are not made public. The final
outcome of the procedure is made public only when the
Commission decides to submit a ‘situation’ to the
Powers of Commission on Human Rights [Cont.]Powers of Commission on Human Rights [Cont.]
(c ) The procedure of appointing country or thematic special
rapporteurs: The Commission entrusts either groups of
expert, or individual experts, with human rights situation
in a certain country.
Its value was limited. Politics played a role in choice and
treatment of particular cases.
• The Commission’s powers were restricted to persuasion,
public criticism and, in the most serious cases, attempts
at isolation of the offending state.
• There were no legally binding sanctions available.
Human Rights CouncilHuman Rights Council
• On 15 March 2006, the GA adopted Resolution
A60/251 to establish the Human Rights Council
to replace the highly politicized Commission on
Human Rights (as a subsidiary organ of the GA).
• The Council consists of 47 Member States,
which are elected directly secret ballot by the
GA; the membership is based on equitable
• Malaysia is one of the founding members.
11. 4. 2 Monitoring mechanisms established by11. 4. 2 Monitoring mechanisms established by
• International human rights treaties have their
own monitoring mechanisms for compliance.
E.g., for the ICCPR, the monitoring body is the
Human Rights Committee (HRC); for CEDAW –
the CEDAW Committee.
• Three general monitoring procedures:
(1) Period reports
(2) Inter-State complaints
(3) Complaints (communications) by individuals.
Effectiveness of the human rights monitoringEffectiveness of the human rights monitoring
mechanism at the universal levelmechanism at the universal level
• Human rights monitoring bodies are not courts of law
and as such their views or findings are not binding on
• There are neither sanctions nor legally binding
enforcement methods entrusted to these bodies.
• This is because they operate in an area where States
are not prepared to submit to international adjudication.
• Further, the area of the international protection of human
rights covers matters that are politically, socio-
economically and culturally sensitive.
11.5 ENFORCEMENT AT THE REGIONAL11.5 ENFORCEMENT AT THE REGIONAL
• It is difficult to reach agreement on human rights
at the universal level on account of conflicting
ideologies and interests.
• Agreement is easier to reach at the regional
level, where States are more likely to have
common values and interests.
• In Europe, the European Convention for the
Protection of Human Rights and Fundamental
Freedoms was adopted in 1950.
• The convention creates the European Court of
Human Rights (ECHR).
European Court of Human Rights (ECHR)European Court of Human Rights (ECHR)
• Under the individual complaint procedure of the
Convention, a national of any State party may
bring an action against his own government for
breaches of human rights.
• It is very much successful and has established a
considerable amount of jurisprudence.
• Non-compliance with judgments of the Court is a
rarity but in such a case the Committee of
Ministers of the Council of Europe can enforce it.
Other Regional human rights courtsOther Regional human rights courts
• The ECHR is the most sophisticated and practically
advanced system of the protection of human rights.
• There are other regional human rights treaties, which are
much less effective than the European Convention.
• In America, the American Convention on Human Rights
was adopted by the OAS in 1969. The Convention
establishes an American Court of Human Rights
• In Africa, the OAU adopted the African Charter of Human
and Peoples’ Rights in 1981. It establishes the African
Commission on Human and Peoples’ Rights.
• Compared to their counterparts at the universal level,
regional human rights monitoring mechanisms are more
advanced. They are normally judicial bodies that can
make binding decisions.
11.6 MALAYSIA AND HUMAN RIGHTS11.6 MALAYSIA AND HUMAN RIGHTS
• In Malaysia, provisions on human rights
can be found in the Federal Constitution,
Part II, Fundamental Liberties (Arts. 5 to
Art. 5: Liberty of a personArt. 5: Liberty of a person
(1)No person shall be deprived of his life or personal liberty
save in accordance with law.
(2) Where complaint is made to a High Court or any judge
thereof that a person is being unlawfully detained the
court shall inquire into the complaint and, unless satisfied
that the detention is lawful, shall order him to be
produced before the court and release him.
(3)Where a person is arrested he shall be informed as soon
as may be of the grounds of his arrest and shall be
allowed to consult and be defended by a legal
practitioner of his choice.
(4)Where a person is arrested and not released he shall
without unreasonable delay, and in any case within
twenty-four hours…be produced before a magistrate and
shall not be further detained in custody without the
Art. 8: EqualityArt. 8: Equality
(1) All persons are equal before the law and entitled to the equal
protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be
no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in thein any law or in the
appointment to any office or employmentappointment to any office or employment under a public authority
or in the administration of any law relating to the acquisition,
holding or disposition of property or the establishing or carrying on
of any trade, business, profession, vocation or employment.
* [Exception: Art. 153]
(5) This Article does not invalidate or prohibit—
(a) any provision regulating personal law;
(b) any provisions or practice restricting office or employment
connected with the affairs of any religion …;
(c) any provision for the protection, well-being or advancement of
the aboriginal peoples of the Malay Peninsula (including the
reservation of land) or the reservation to aborigines of a
reasonable proportion of suitable positions in the public service;
Article 10. Freedom of speech, assembly andArticle 10. Freedom of speech, assembly and
(1) Subject to Clauses (2), (3) and (4)—
(a) every citizen has the right to freedom of speech and expression;
(b) all citizens have the right to assemble peaceably and without
(c) all citizens have the right to form associations.
(2) Parliament may by law impose—
(a) on the rights conferred by paragraph (a) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…, friendly relations with other countries,
public order or morality and restrictions designed to protect the
privileges of Parliament…;
(b) on the right conferred by paragraph (b) of Clause (1), such
restrictions as it deems necessary or expedient in the interest of the
security of the Federation…or public order;
(c) on the right conferred by paragraph (c) of Clause (1), …the
security of the Federation or any part thereof, public order or
Article 11. Freedom of religionArticle 11. Freedom of religion
(1)Every person has the right to profess and practise his
religion and, subject to Clause (4), to propagate it.
(4) State law and in respect of the Federal Territories of
Kuala Lumpur, Labuan and Putrajaya, federal law may
control or restrict the propagation of any religious
doctrine or belief among persons professing the religion
(5) This Article does not authorize any act contrary to any
general law relating to public order, public health or
Malaysia and Human Rights treatiesMalaysia and Human Rights treaties
• Out of the many human rights treaties,
Malaysia is a party only to two:
(1) CEDAW; and
(2) Convention on the Rights of the Child
Human Rights Commission of MalaysiaHuman Rights Commission of Malaysia
• In 1999, Human Rights Commission of
Malaysia Act was passed.
• Art. 2: “human rights” refers to
fundamental liberties as enshrined in Part
II of the Federal Constitution.
Section 4. Functions and powers of theSection 4. Functions and powers of the
(1) In furtherance of the protection and promotion of human rights in
Malaysia, the functions of the Commission shall be -
(a) to promote awareness of and provide education in relation to
(b) to advise and assist the Government in formulating legislation
and administrative directives and procedures and recommend the
necessary measures to be taken;
(c) to recommend to the Government with regard to the subscription
or accession of treaties and other international instruments in the
field of human rights; and
(d) to inquire into complaints regarding infringements of human
rights referred to in section 12.
Functions and powers of human RightsFunctions and powers of human Rights
Commission [Cont.]Commission [Cont.]
(2) For the purpose of discharging its functions, the Commission may exercise
any or all of the following powers:
(a) to promote awareness of human rights and to undertake research by
conducting programmes, seminars and workshops…;
(b) to advise the Government and/or the relevant authorities of complaints
against such authorities and recommend to the Government and/or such
authorities appropriate measures to be taken;
(c) to study and verify any infringement of human rights in accordance with the
provisions of this Act;
(d) to visit places of detention in accordance with procedures as prescribed by
the laws …and to make necessary recommendations;
(e) to issue public statements on human rights as and when necessary; and
(f) to undertake any other appropriate activities as are necessary….
Functions and powers of human RightsFunctions and powers of human Rights
Commission [Cont.]Commission [Cont.]
(3) The visit by the Commission to any place of
detention under paragraph (2)(d) shall not be
refused by the person in charge of such place of
detention if the procedures provided in the laws
regulating such places of detention are complied
(4) 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.
Malaysian courts and human rightsMalaysian courts and human rights
• Malaysia is not a party to the ICCPR and the
• It is, therefore, not surprising that the only
human rights instrument that can be relied upon
by human right lawyers in Malaysia is the
Universal Declaration of Human Rights (UDHR),
which is not actually legally binding.
• However, the interpretative response of
Malaysian courts to the UDHR is mainly
unfavourable. The total rejection of the UDHR
can be seen in Merdeka University Bhd case.
Merdeka University Bhd v Government of MalaysiaMerdeka University Bhd v Government of Malaysia
 2 MLJ 356 (Abdool Cader J) 2 MLJ 356 (Abdool Cader J)
• Held: “the Universal Declaration of Human Rights …is
not a legally binding instrument as such and some of its
provisions depart from existing and generally accepted
rules. It is merely a statement of principles devoid of any
obligatory character and is not part of our municipal law.”
• The decision of Merdeka University Bhd was
unchallenged even after the passing of the Human
Rights Commission of Malaysia Act 1999, section 4(4),
which can be seen in Mohamad Ezam case.
Mohamad Ezam bin Mohd Noor v Ketua PolisMohamad Ezam bin Mohd Noor v Ketua Polis
NegaraNegara  4 MLJ 449, 4 MLJ 449, Siti Norma Yaakob FCJSiti Norma Yaakob FCJ
“Notwithstanding s 4(4) of the Human Rights Commission of Malaysia
Act 1999, reference to international standards set by the Universal
Declaration of Human Rights 1948…and several other United
Nations documents on the right of access cannot be accepted as
such documents were not legally binding on the Malaysian courts.
The use of the words ‘regard shall be had’ in s 4(4) of the Human
Rights Commission of Malaysia Act can only mean an invitation to
look at the 1948 Declaration if one was disposed to do so and to
consider the principles stated therein and be persuaded by them if
need be. Beyond that, one was not obliged or compelled to adhere to
the 1948 Declaration. This was further emphasized by the qualifying
provisions of s 4(4) of the Human Rights Commission of Malaysia
Act which provided that regard to the 1948 Declaration was subject
to the extent that it was not inconsistent with the Constitution.”
Decisions favourable to the protection of humanDecisions favourable to the protection of human
• Nevertheless, there are indeed a few
recent cases which can be seen as
enlightenment leading to a more liberal
interpretation and leaning more towards
the recognition of the international
protection of human rights.
Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,
 2 MLJ 591, High Court 2 MLJ 591, High Court (Mohd. Noor Ahmad J).(Mohd. Noor Ahmad J).
• The plaintiffs were ‘orang asli’ of the Temuan tribe. The
Land Administrator gave written notices to them to
vacate the land they were occupying failing which
enforcement actions would be taken.
• The learned judge traced back to the establishment of
the Selangor Sultanate in 1766 and pointed out that
orang asli people occupied the lands in an organized
society and although the Sultan owned the lands, they
were left undisturbed to manage their affairs and way of
life thereon in accordance with their practices, customs
• By referring to the worldwide trend recognizing aboriginal
rights, the learned judge upheld the propriety interest of
orang asli in their customary and ancestral lands.
Abd Malek bin Hussin v Borhan bin Hj Daud &Abd Malek bin Hussin v Borhan bin Hj Daud &
OrsOrs  1 MLJ 368 1 MLJ 368 (M. Hishamudin, HC, KL)(M. Hishamudin, HC, KL)
• This is a very recent case dealing with the legality of an
arrest under the ISA. The learned judge held that the
arrest was unlawful under Article 5(3) of the Federal
Constitution and pointed out that:
“In dealing with art 5(3) of the Constitution, I am mindful
of the fact that I am presently dealing with the
fundamental liberty of the citizens. The preservation of
the personal liberty of the individual is a sacred universal
value of all civilized nations and is enshrined in the
UDHR. Article 5(3) of the Federal Constitution
guarantees every person in this country of his personal
liberty and protection from arbitrary arrest particularly
arbitrary arrest by the State…. judges are protectors of
the fundamental liberties of the citizens and that this is a
sacred duty or trust which Judges must constantly