CHAPTER 11CHAPTER 11INTERNATIONAL HUMAN RIGHTSINTERNATIONAL HUMAN RIGHTSLAWLAWPROFESSORPROFESSORDR. ABDUL GHAFUR HAMIDDR. ...
11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMANRIGHTSRIGHTS [Textbook, p. 339][Textbook, p. 339]• The crux of internati...
11. 1.111. 1.1 Categorisation of human rightsCategorisation of human rightsHuman rights are generally divided into three m...
Civil and political rightsCivil and political rights• Civil and political rights (freedom ofexpression, freedom of peacefu...
Economic, social and cultural rightsEconomic, social and cultural rights• Economic, social and cultural rights (e.g.,right...
Group or peoples’ rightsGroup or peoples’ rights• Group or peoples’ rights emerged as recentlyas the 1970s and are support...
11.1.211.1.2 Universalism and CulturalUniversalism and Culturalrelativismrelativism• The question of the ‘universal’ or ‘r...
• Advocates of “cultural relativism” claim that most(or some) rights depend on cultural context, theterm ‘culture’ being u...
• On their face, human rights instruments are onthe ’universal’ side of this debate. The landmarkinstrument is the Univers...
• During the Cold War, such debates were mainlybetween the Communist and the Western.• The West charged the Communist worl...
11.1.311.1.3 The Islamic perspective of humanThe Islamic perspective of humanrightsrights• Islam has its own values and st...
Reformists and traditionalistsReformists and traditionalists• Ijtihad: Whether the door for ijtihad hasbeen closed or not....
Islamic values versus Human rights instrumentsIslamic values versus Human rights instruments• Human rights instruments are...
The practice of Islamic countriesThe practice of Islamic countries• Although most of the Islamic countries apply theWester...
The practice of Islamic countries [Cont.]The practice of Islamic countries [Cont.]• In view of this, they made reservation...
11.3 The evolution of international human11.3 The evolution of international humanrights lawrights lawThe concept of the i...
11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter• Preamble: reaffirmed their “faith in...
• Some argue that the human rights clauses of theCharter do not impose any legal obligation onmember States with regard to...
11.3.2 The Universal Declaration of Human11.3.2 The Universal Declaration of HumanRightsRights• The General Assembly adopt...
UDHRUDHR [Cont.][Cont.]• In spite of its limitations, the Declaration is ofgreat importance in stimulating and promotingth...
International human rights treaties and theirInternational human rights treaties and theirratification statusratification ...
11.3.4 The International Covenant on Civil and11.3.4 The International Covenant on Civil andPolitical Rights 1966 (ICCPR)P...
Obligations of States partiesObligations of States parties• Art. 2(1): “to respect and to ensure to allindividuals…the rig...
Art. 4: emergency threatening the existence of theArt. 4: emergency threatening the existence of thestatestate1 . In time ...
Human Rights Committee (HRC)Human Rights Committee (HRC)Art. 28Art. 28• The Human Rights Committee has 18 members.• It has...
OptionalOptional inter-State complaints procedureinter-State complaints procedure[Art. 41][Art. 41]• A contracting party m...
Complaints by victims of human rights violationsComplaints by victims of human rights violationsFirst Optional ProtocolFir...
11.3.5 International Covenant on Economic, Social11.3.5 International Covenant on Economic, Socialand Cultural Rights 1966...
ICCPR and ICESCR: compare and constrastICCPR and ICESCR: compare and constrast(1) Obligation of state parties:(a) The obli...
(2) Favourable condition for developing countries:A significant feature of the ICESCR is thatdeveloping countries, with du...
11.3.6 The Convention on the Elimination of All11.3.6 The Convention on the Elimination of AllForms of Discrimination Agai...
Reservations to CEDAWReservations to CEDAW• Out of 185 States Parties , 57 have currentlyreservations to it.• Most reserva...
11.3 FUNDAMENTAL HUMAN RIGHTS11.3 FUNDAMENTAL HUMAN RIGHTS• Some of the civil and political rights, asenshrined in the ICC...
Art. 6: The Right to lifeArt. 6: The Right to life1. Every human being has the inherent right tolife. This right shall be ...
Second Optional Protocol to the ICCPR, aimingSecond Optional Protocol to the ICCPR, aimingat the abolition of the death pe...
Art. 7: TortureArt. 7: Torture• No one shall be subjected to torture or to cruel, inhumanor degrading treatment or punishm...
Art. 9: Deprivation of liberty;Art. 9: Deprivation of liberty;Freedom from arbitrary arrest or detentionFreedom from arbit...
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]• The question of arbi...
Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]• Art. 9(4) - Habeas C...
Art. 10: The rights of detaineesArt. 10: The rights of detainees1. All persons deprived of their liberty shall betreated w...
Art. 14: The right to a fair trialArt. 14: The right to a fair trial1. …everyone shall be entitled to a fair and public he...
Art. 18: Freedom of thought, conscience andArt. 18: Freedom of thought, conscience andreligionreligion1. Everyone shall ha...
Art. 26: Equality and Non-discriminationArt. 26: Equality and Non-discrimination• Equality of treatment and the prohibitio...
Convention on the Elimination of All Forms ofConvention on the Elimination of All Forms ofRacial Discrimination, 1965Racia...
Art. 1: Meaning of racial discriminationArt. 1: Meaning of racial discrimination1. In this Convention, the term "racial di...
Islam and non-discriminationIslam and non-discrimination• Al-Qur’an, Surah Al Hujarat, 49: 13“O Mankind! We created you fr...
Islam and non-discrimination [Cont.]Islam and non-discrimination [Cont.]• It is proclaimed in a hadith that:“Through Islam...
11.4 ENFORCEMENT AT THE11.4 ENFORCEMENT AT THEUNIVERSAL LEVELUNIVERSAL LEVEL• The best means of ensuring respect for a rig...
11. 4. 1 Monitoring mechanisms established by11. 4. 1 Monitoring mechanisms established bythe United Nationsthe United Nat...
Powers of Commission on Human RightsPowers of Commission on Human Rights(a) ECOSOC resolution 1235 “to examine information...
Powers of Commission on Human Rights [Cont.]Powers of Commission on Human Rights [Cont.](c ) The procedure of appointing c...
Human Rights CouncilHuman Rights Council• On 15 March 2006, the GA adopted ResolutionA60/251 to establish the Human Rights...
11. 4. 2 Monitoring mechanisms established by11. 4. 2 Monitoring mechanisms established bytreatiestreaties• International ...
Effectiveness of the human rights monitoringEffectiveness of the human rights monitoringmechanism at the universal levelme...
11.5 ENFORCEMENT AT THE REGIONAL11.5 ENFORCEMENT AT THE REGIONALLEVELLEVEL• It is difficult to reach agreement on human ri...
European Court of Human Rights (ECHR)European Court of Human Rights (ECHR)• Under the individual complaint procedure of th...
Other Regional human rights courtsOther Regional human rights courts• The ECHR is the most sophisticated and practicallyad...
11.6 MALAYSIA AND HUMAN RIGHTS11.6 MALAYSIA AND HUMAN RIGHTS• In Malaysia, provisions on human rightscan be found in the F...
Art. 5: Liberty of a personArt. 5: Liberty of a person(1)No person shall be deprived of his life or personal libertysave i...
Art. 8: EqualityArt. 8: Equality(1) All persons are equal before the law and entitled to the equalprotection of the law.(2...
Article 10. Freedom of speech, assembly andArticle 10. Freedom of speech, assembly andassociationassociation(1) Subject to...
Article 11. Freedom of religionArticle 11. Freedom of religion(1)Every person has the right to profess and practise hisrel...
Malaysia and Human Rights treatiesMalaysia and Human Rights treaties• Out of the many human rights treaties,Malaysia is a ...
Human Rights Commission of MalaysiaHuman Rights Commission of Malaysia(SUHAKAM)(SUHAKAM)• In 1999, Human Rights Commission...
Section 4. Functions and powers of theSection 4. Functions and powers of theCommissionCommission(1) In furtherance of the ...
Functions and powers of human RightsFunctions and powers of human RightsCommission [Cont.]Commission [Cont.](2) For the pu...
Functions and powers of human RightsFunctions and powers of human RightsCommission [Cont.]Commission [Cont.](3) The visit ...
Malaysian courts and human rightsMalaysian courts and human rights• Malaysia is not a party to the ICCPR and theICESCR.• I...
Merdeka University Bhd v Government of MalaysiaMerdeka University Bhd v Government of Malaysia[1981] 2 MLJ 356 (Abdool Cad...
Mohamad Ezam bin Mohd Noor v Ketua PolisMohamad Ezam bin Mohd Noor v Ketua PolisNegaraNegara [2002] 4 MLJ 449,[2002] 4 MLJ...
Decisions favourable to the protection of humanDecisions favourable to the protection of humanrightsrights• Nevertheless, ...
Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,[2002] 2 MLJ...
Abd Malek bin Hussin v Borhan bin Hj Daud &Abd Malek bin Hussin v Borhan bin Hj Daud &OrsOrs [2008] 1 MLJ 368[2008] 1 MLJ ...
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International Human Rights Law

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International Human Rights Law

  1. 1. CHAPTER 11CHAPTER 11INTERNATIONAL HUMAN RIGHTSINTERNATIONAL HUMAN RIGHTSLAWLAWPROFESSORPROFESSORDR. ABDUL GHAFUR HAMIDDR. ABDUL GHAFUR HAMID
  2. 2. 11.1 THE CONCEPT OF HUMAN11.1 THE CONCEPT OF HUMANRIGHTSRIGHTS [Textbook, p. 339][Textbook, p. 339]• The crux of international human rights law: toafford legal protection of every human being onthe planet earth.• “All individuals, solely by virtue of being humanbeings, have rights which no society or Stateshould deny”.• Unfortunately, however, there are radicallydifferent definitions, and interpretations ofhuman rights, and different approaches.
  3. 3. 11. 1.111. 1.1 Categorisation of human rightsCategorisation of human rightsHuman rights are generally divided into three maincategories:(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, thesecond, and the third generation respectively.
  4. 4. Civil and political rightsCivil and political rights• Civil and political rights (freedom ofexpression, freedom of peaceful assembly,freedom from torture, freedom from arbitraryarrest and detention, right to a fair trial, etc.)derive from the natural rights philosophy of JohnLocke, Rousseau and others.• They protect against encroachments ofgovernment.• These rights have traditionally been givenpriority by Western States.
  5. 5. Economic, social and cultural rightsEconomic, social and cultural rights• Economic, social and cultural rights (e.g.,right to work, right to education, right to accessto health care) attained recognition in thetwentieth century with the advent of socialism.• They argued that achievement of economic andsocial rights was a pre-condition for other rights.• That is, until the economic and social rights wererealized a State was not in a position to providecivil and political rights.
  6. 6. Group or peoples’ rightsGroup or peoples’ rights• Group or peoples’ rights emerged as recentlyas the 1970s and are supported by developingcountries.• The focus is on collective as opposed toindividual rights.• The right to development and the right to self-determination are two main examples.• In the early 1970s, thanks to their numericalsuperiority, the developing countries managed toelaborate their own philosophy of human rights.
  7. 7. 11.1.211.1.2 Universalism and CulturalUniversalism and Culturalrelativismrelativism• The question of the ‘universal’ or ‘relative’character of the human rights has been a sourceof debate from the beginning of the human rightsmovement.• The proponents of the “universalism” claim thatinternational human rights like rights to equalprotection by law, physical security, freedom ofspeech, freedom of religion and freedom ofassociation are and must be the sameeverywhere.
  8. 8. • Advocates of “cultural relativism” claim that most(or some) rights depend on cultural context, theterm ‘culture’ being used in a broad way toinclude political and religious ideologies andinstitutional structures.• Hence notions of right (and wrong) necessarilydiffer throughout the world because the culturesin which they take root differ.
  9. 9. • On their face, human rights instruments are onthe ’universal’ side of this debate. The landmarkinstrument is the Universal Declaration ofHuman Rights (UDHR).• The two Covenants (ICCPR, ICESCR) alsospeak in universal terms: ‘everyone’ has theright to liberty, ‘all persons’ are entitled to equalprotection, etc.• To the relativists, these instruments are theindicators of the so-called ‘cultural imperialism’of the West.
  10. 10. • During the Cold War, such debates were mainlybetween the Communist and the Western.• The West charged the Communist world withviolating many basic rights of a civil and politicalcharacter. The Communist world charged theWest with violations of the more importanteconomic and social rights.• Today the universal-relative debate takes placeprimarily in a North-South (or West-East)framework between developed and developingcountries.
  11. 11. 11.1.311.1.3 The Islamic perspective of humanThe Islamic perspective of humanrightsrights• Islam has its own values and standards ofhuman rights, founded on ‘Shari’ah’, theDivine Law, the essence of which isabsolute submission to the Will of GodAlmighty.• However, it appears that Islamic jurists aredivided on how to interpret the originalsources of Shari’ah.
  12. 12. Reformists and traditionalistsReformists and traditionalists• Ijtihad: Whether the door for ijtihad hasbeen closed or not.• Traditionalists: must strictly follow theclassical interpretations.• Reformists: should not interpret theoriginal sources literally but consider therationale behind the revelation in question.
  13. 13. Islamic values versus Human rights instrumentsIslamic values versus Human rights instruments• Human rights instruments are mainly based on‘universalism’.• There are arguments that Islamic values conflictwith some norms of the human rightsinstruments (esp. in respect of family law, thenotion of Qawama (guardianship and authority),the notion of al-hijab, and the law of apostasy).• To counter these, many Islamic jurists rely onthe concept of cultural-relativism.
  14. 14. The practice of Islamic countriesThe practice of Islamic countries• Although most of the Islamic countries apply theWestern 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 rightsinstruments, they find that some of theprovisions are in conflict with Islamic law.
  15. 15. The practice of Islamic countries [Cont.]The practice of Islamic countries [Cont.]• In view of this, they made reservations when ratifying theConvention on the Elimination of All Forms ofDiscrimination Against Women, 1979 (CEDAW), and theConvention on the Rights of the Child, 1989.• Some of the Western countries make objections to thesereservations on the ground that they are not compatiblewith the purpose of the Conventions.• Islamic countries are on the horns of a legal dilemma.• See: Abdul Ghafur Hamid, “Reservations to CEDAW andthe Implementation of Islamic Family Law: Issues andChallenges”, (2006) Asian JIL, vol. 1 No. 2, 121-155.Conference Paper, International Conference on IslamicFamily Law (2006).
  16. 16. 11.3 The evolution of international human11.3 The evolution of international humanrights lawrights lawThe concept of the international protection ofhuman rights is revolutionary in nature given thefact that the traditional doctrine of internationallaw had no place for it at all.The turning point for this change of the paradigmis the Charter of the United Nations, which isusually referred to as the starting point for anystudy of the protection of human rights.
  17. 17. 11.3.1 Human rights clauses of the Charter11.3.1 Human rights clauses of the Charter• Preamble: reaffirmed their “faith in fundamentalhuman rights, in the dignity and worth of humanperson, in the equal rights of men and women”.• Article 1: the achievement of internationalcooperation “in promoting and encouragingrespect for human rights and for fundamentalfreedoms for all without distinction as to race,sex, language, or religion”.• Also Arts. 55 and 56 (All members pledgethemselves to take joint and separate action).
  18. 18. • Some argue that the human rights clauses of theCharter do not impose any legal obligation onmember States with regard to their ownnationals.• The better view, however, is that the use of theword “pledge’ in Article 56 implies a legalobligation, although the obligation is weak inview of the fact that there is no enumeration inthe Charter of the fundamental human rightswhich are to be observed by States.
  19. 19. 11.3.2 The Universal Declaration of Human11.3.2 The Universal Declaration of HumanRightsRights• The General Assembly adopted of the UniversalDeclaration of Human Rights on 10 December 1948.• Two main categories of human rights, namely: civil andpolitical rights [Articles 3 to 21] and economic, social andcultural rights [Articles 22 to 27].• Many laymen imagine that States are under a legalobligation to respect the rights listed in the UDHR. It isnot so.• As it is not a treaty, the Declaration as such is not legallybinding.• It is simply a list of human rights which member states‘pledge’ themselves to promote under Articles 55 and 56of the Charter.
  20. 20. UDHRUDHR [Cont.][Cont.]• In spite of its limitations, the Declaration is ofgreat importance in stimulating and promotingthe international protection of human rights.• It has impact in shaping subsequent treaties onhuman rights, and upon the content of theconstitutions of new States.• It is possible that at least some part of theDeclaration, like the prohibition of torture, maysubsequently have become binding as a newrule of customary international law.
  21. 21. International human rights treaties and theirInternational human rights treaties and theirratification statusratification statusConvention …………….. 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
  22. 22. 11.3.4 The International Covenant on Civil and11.3.4 The International Covenant on Civil andPolitical Rights 1966 (ICCPR)Political Rights 1966 (ICCPR)• As UDHR is not legally binding, States strived foradopting binding international conventions on humanrights.• The International Covenant on Civil and Political Right(ICCPR) and the International Covenant on Economic,Social and Cultural Rights (ICESCR) were finallyadopted by the GA on 16 December 1966. Both cameinto force in 1976.• As of now, there are 164 State parties to the ICCPR and160 States parties to the ICESCR.• Both Covenants contain a common article (Article 1)reaffirming the “right of self-determination”.
  23. 23. Obligations of States partiesObligations of States parties• Art. 2(1): “to respect and to ensure to allindividuals…the rights recognized in the presentCovenant.”• Art. 2(2): “to undertake the necessary steps toadopt such legislation or other measures as maybe necessary to give effect to the rightsrecognised in the Covenant.• Art. 2(3): “to ensure that any person whoserights are violated has an effective remedy,notwithstanding that the violation has beencommitted by persons acting in an officialcapacity.”
  24. 24. Art. 4: emergency threatening the existence of theArt. 4: emergency threatening the existence of thestatestate1 . In time of public emergency which threatens the life ofthe nation and the existence of which is officiallyproclaimed, the States Parties to the present Covenantmay take measures derogating from their obligationsunder the present Covenant to the extent strictly requiredby the exigencies of the situation, provided that suchmeasures are not inconsistent with their other obligationsunder international law and do not involve discriminationsolely 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.
  25. 25. 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 Stateparties are obliged to present reports (initial and period)indicating compliance with the ICCPR;(2) Optional inter-State complaints procedure; and(3) Individual complaints procedure.
  26. 26. 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 aclaim to the HRC alleging a violation of the Covenant byit.• Negotiations between the two parties must have beencompleted without success.• If satisfied that local remedies have been exhausted, theCommittee shall make available its good offices.• The Committee must, within twelve months, submit areport, which is not legally binding.
  27. 27. Complaints by victims of human rights violationsComplaints by victims of human rights violationsFirst Optional ProtocolFirst Optional Protocol, 1966, 1966• The most significant monitoring mechanism isthe individual complaints procedure under theFirst Optional Protocol to the ICCPR, 1966.There were 107 Parties to it.• The victims of human rights violations, if theyhave exhausted all available domestic remedies,may submit a written communication to theCommittee for consideration.• There is also a Second Optional Protocolwhich deals with ‘abolition of death penalty’.
  28. 28. 11.3.5 International Covenant on Economic, Social11.3.5 International Covenant on Economic, Socialand Cultural Rights 1966 (ICESCR)and Cultural Rights 1966 (ICESCR)• The ICESCR provides for the right of self-determinationfor all peoples, the right to work, the right to form tradeunions and to strike, the right to social security, the rightto an adequate standard of living, the right to health, theright to education and the enjoyment of certain culturalrights.• Art. 2 (1): “each State Party undertakes to take steps…to the maximum of its available resources, with a view toachieving progressively the full realization of the rightsrecognized in the present Covenant by all appropriatemeans, including particularly the adoption of legislativemeasures.”
  29. 29. ICCPR and ICESCR: compare and constrastICCPR and ICESCR: compare and constrast(1) Obligation of state parties:(a) The obligation under ICESCR is verygeneral and limited to ‘taking steps’ with a viewto ‘achieving progressively the full realizationof the rights’ whereas ICCPR imposes a morestringent obligation on States ‘to respect and toensure’.(b) The obligation under ICESCR is alsolimited To the maximum of its availableresources.
  30. 30. (2) Favourable condition for developing countries:A significant feature of the ICESCR is thatdeveloping countries, with due regard to humanrights and their national economy, maydetermine to what extent they would guaranteethe economic rights recognized in the Covenantto non-nationals. [Art. 2(3)](3) Individual complaints procedure: There is anOptional Protocol to the ICCPR establishingindividual complaint procedure while there is nosuch procedure in ICESCR.
  31. 31. 11.3.6 The Convention on the Elimination of All11.3.6 The Convention on the Elimination of AllForms of Discrimination Against Women 1979Forms of Discrimination Against Women 1979(CEDAW)(CEDAW)• Adopted by the GA on 18 December 1979 and enteredinto 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 ofmen and women in their national constitutions or otherappropriate legislation.• Art. 8 (2) of the Federal Constitution was amended (in2001) to guarantee gender equality.• The Convention establishes a Committee on theElimination of Discrimination against Women (CEDAW),which consists of 23 independent experts as members,to monitor its implementation.
  32. 32. Reservations to CEDAWReservations to CEDAW• Out of 185 States Parties , 57 have currentlyreservations to it.• Most reservation are made on: Arts. 2, 5, 7, and 16.• Art. 28: A reservation incompatible with the object andpurpose of the Convention shall not be permitted.• Especially the rights granted to women in Article 16(regarding marriage and family relations) raisedwidespread opposition, particularly from many IslamicStates.• Malaysia has made reservations on Arts. 5(a), 7(b), 9(2),16 (a), 16(c), 16(f), and 16 (g).
  33. 33. 11.3 FUNDAMENTAL HUMAN RIGHTS11.3 FUNDAMENTAL HUMAN RIGHTS• Some of the civil and political rights, asenshrined in the ICCPR, need to bediscussed further because they are offundamental importance.
  34. 34. Art. 6: The Right to lifeArt. 6: The Right to life1. Every human being has the inherent right tolife. This right shall be protected by law. No oneshall be arbitrarily deprived of his life.2. In countries which have not abolished the deathpenalty, sentence of death may be imposedonly for the most serious crimes in accordancewith the law in force at the time of thecommission of the crime (and not contrary tothe provisions of the present Covenant and tothe Convention on the Prevention andPunishment of the Crime of Genocide).
  35. 35. Second Optional Protocol to the ICCPR, aimingSecond Optional Protocol to the ICCPR, aimingat 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 statesparties to the Second Optional Protocolmay be executed and States are requiredto take all necessary measures to abolishthe death penalty within their jurisdiction.
  36. 36. Art. 7: TortureArt. 7: Torture• No one shall be subjected to torture or to cruel, inhumanor degrading treatment or punishment.• In Ambrosini v Uruguay, immediately after his detention,the accused was subjected to various forms of torturesuch as (i) being forced to remain standing for 14 hours ata time, (ii) electric shocks, and (iii) physical blows to thebody. The Committee considered that these factsdisclosed violation of Art. (7).• The Committee also found violation of Art. 10(1) becausehe was detained under conditions seriously detrimental tohis health; Art. 9(3) because he was not brought to trialwithin a reasonable time; art. 9(4) because he was deniedany effective remedy to challenge his arrest anddetention; and Art. 10(1) because he was heldincommunicado for months and was denied the right to bevisited by any family member.
  37. 37. Art. 9: Deprivation of liberty;Art. 9: Deprivation of liberty;Freedom from arbitrary arrest or detentionFreedom from arbitrary arrest or detention1. Everyone has the right to liberty and security of person.No one shall be subjected to arbitrary arrest ordetention….2. Anyone who is arrested shall be informed, at the timeof arrest, of the reasons for his arrest and shall bepromptly informed of any charges against him.3. Anyone arrested or detained on a criminal charge shallbe brought promptly before a judge or other officerauthorized by law to exercise judicial power and shallbe entitled to trial within a reasonable time or torelease….4. Anyone who is deprived of his liberty by arrest ordetention shall be entitled to take proceedings before acourt, in order that that court may decide without delayon the lawfulness of his detention and order his releaseif the detention is not lawful.
  38. 38. 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 oflaw.• Bringing a detainee ‘promptly’ before a competent court -Art. 9(3):In Kennedy v Trinidad and Tobago, the accused was notbrought before a judge until 6 days after arrest. TheHuman Rights Committee (HRC) stated that delaysshould not exceed a few days. In the current case, theCommittee considered that the accused was not brought‘promptly’ before a judge, in violation of Art. 9(3).
  39. 39. Freedom from arbitrary arrest or detention [Cont.]Freedom from arbitrary arrest or detention [Cont.]• Art. 9(4) - Habeas Corpus: This paragraphguarantees the right of every person deprived ofliberty by arrest or detention to take proceedingsbefore a court, in order to determine, withoutdelay, the lawfulness of the detention and orderthe person’s release if the detention is not lawful.• This falls squarely within the traditional commonlaw writ of habeas corpus.• Holding a person incommunicado has beenseen as an effective bar against the ability tochallenge the validity of one’s arrest, and thus inbreach of Art. 9(4).[Muteba v Zaire]
  40. 40. Art. 10: The rights of detaineesArt. 10: The rights of detainees1. All persons deprived of their liberty shall betreated with humanity and with respect for theinherent dignity of the human person.- Allowing visits, in particular by familymembers, is a measure that is required forreasons of humanity.- A lack of sanitation, light, ventilation andbedding can be treated as a violation of Art.10(1).
  41. 41. Art. 14: The right to a fair trialArt. 14: The right to a fair trial1. …everyone shall be entitled to a fair and public hearingby a competent, independent and impartial tribunalestablished by law.2. Everyone charged with a criminal offence shall have theright to be presumed innocent until proved guilty.3. …everyone shall be entitled to the following minimumguarantees…:(a) To be informed promptly and in detail … of the natureand cause of the charge against him;(b) To have adequate time and facilities for thepreparation of his defence and to communicate withcounsel of his own choosing;(c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself inperson or through legal assistance of his own choosing.
  42. 42. Art. 18: Freedom of thought, conscience andArt. 18: Freedom of thought, conscience andreligionreligion1. Everyone shall have the right to freedom of thought,conscience and religion. This right shall include freedomto have or to adopt a religion or belief of his choice, andfreedom, either individually or in community with othersand in public or private, to manifest his religion or beliefin worship, observance, practice and teaching.2. No one shall be subject to coercion which would impairhis freedom to have or to adopt a religion or belief of hischoice.3. Freedom to manifest ones religion or beliefs may besubject only to such limitations as are prescribed by lawand are necessary to protect public safety, order,health, or morals or the fundamental rights andfreedoms of others.
  43. 43. Art. 26: Equality and Non-discriminationArt. 26: Equality and Non-discrimination• Equality of treatment and the prohibition of discriminationis a pervasive theme of the ICCPR to which referencecan be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25and 26.• HCR has identified Art. 26 as a autonomous right, i.e., ageneral right of non-discrimination which existsindependently of other rights.• Art. 26: All persons are equal before the law and areentitled without any discrimination to the equal protectionof the law. In this respect, the law shall prohibit anydiscrimination and guarantee to all persons equal andeffective protection against discrimination on any groundsuch as race, colour, sex, language, religion, political orother opinion, national or social origin, property, birth orother status.
  44. 44. Convention on the Elimination of All Forms ofConvention on the Elimination of All Forms ofRacial Discrimination, 1965Racial Discrimination, 1965[173 State parties; almost universal][173 State parties; almost universal]Preamble:• Convinced that any doctrine of superiority based onracial differentiation is scientifically false, morallycondemnable, socially unjust and dangerous, and thatthere is no justification for racial discrimination, in theoryor in practice, anywhere,• Reaffirming that discrimination between human beingson the grounds of race, colour or ethnic origin is anobstacle to friendly and peaceful relations among nationsand is capable of disturbing peace and security amongpeoples and the harmony of persons living side by sideeven within one and the same State,
  45. 45. Art. 1: Meaning of racial discriminationArt. 1: Meaning of racial discrimination1. In this Convention, the term "racial discrimination" shall mean anydistinction, exclusion, restriction or preference based on race, colour,descent, or national or ethnic origin which has the purpose or effectof nullifying or impairing the recognition, enjoyment or exercise, onan equal footing, of human rights and fundamental freedoms in thepolitical, 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-citizens.4. Special measures taken for the sole purpose of securing adequateadvancement of certain racial or ethnic groups or individualsrequiring such protection as may be necessary in order to ensuresuch groups or individuals equal enjoyment or exercise of humanrights and fundamental freedoms shall not be deemed racialdiscrimination, provided, however, that such measures do not, as aconsequence, lead to the maintenance of separate rights for differentracial groups and that they shall not be continued after the objectivesfor which they were taken have been achieved.
  46. 46. Islam and non-discriminationIslam and non-discrimination• Al-Qur’an, Surah Al Hujarat, 49: 13“O Mankind! We created you from a single (pair) maleand female, and made you into nations and tribes thatyou may know each other. Surely the noblest of you inthe eyes of Allah is the most pious of you…”• Extract from the Prophet (SAW) ’s sermon on theoccasion of the Farewell Pilgrimage:• “O people! Your creator is one, and you are alldescendants of the same ancestor. There is nosuperiority of an Arab over a non-Arab, or of the blackover the red, except on the basis of righteous conduct.”
  47. 47. 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 andarrogance of the Time of Ignorance, and the [false] pride that peopletook in their ancestry. For all men are descended from Adam andAdam was made from clay.”• It is reported that a group of Qurayshite dignitaries paid a visit to theProphet (SAW) and told him“How can we sit with you, O Muhammad, while you keep thecompany 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 listento 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 faras equality and non-discrimination is concerned.
  48. 48. 11.4 ENFORCEMENT AT THE11.4 ENFORCEMENT AT THEUNIVERSAL LEVELUNIVERSAL LEVEL• The best means of ensuring respect for a right isto back it up with legal guarantees to beadministered by a court of law.• In the case of human rights – no internationalhuman rights court.• There are only “monitoring mechanisms”, whichare much weaker than international adjudication.• Two principal monitoring mechanisms:(i) those set up by the UN, and(ii) those established by international treaties.
  49. 49. 11. 4. 1 Monitoring mechanisms established by11. 4. 1 Monitoring mechanisms established bythe United Nationsthe United Nations• Art. 13 of the Charter: the General Assembly can initiatestudies and make recommendations on human rightsissues.• Art. 62: The ECOSOC can make recommendations onhuman rights, draft conventions, convene internationalconferences, and hear reports from various bodies.• Under Art. 68, a Commission on Human Rights wasestablished by the ECOSOC in 1946 (now replaced byHuman Rights Council).• It had no authority to deal with complaints on violations ofhuman rights. However, subsequently, it had beenentrusted by means of resolutions of the ECOSOC andthe GA with some monitoring and enforcement functions.
  50. 50. Powers of Commission on Human RightsPowers of Commission on Human Rights(a) ECOSOC resolution 1235 “to examine informationrelevant to gross violations of human rights” and “tostudy situations which reveal a consistent pattern ofviolations of human rights”. This is public procedure.May adopt resolutions deploring or condemning aparticular State for its breaches of human rights.(b) ECOSOC Resolution 1503 (confidential procedure): thecommunications from individuals and groups alleginghuman rights violations are not made public. The finaloutcome of the procedure is made public only when theCommission decides to submit a ‘situation’ to theECOSOC.
  51. 51. Powers of Commission on Human Rights [Cont.]Powers of Commission on Human Rights [Cont.](c ) The procedure of appointing country or thematic specialrapporteurs: The Commission entrusts either groups ofexpert, or individual experts, with human rights situationin a certain country.Its value was limited. Politics played a role in choice andtreatment of particular cases.• The Commission’s powers were restricted to persuasion,public criticism and, in the most serious cases, attemptsat isolation of the offending state.• There were no legally binding sanctions available.
  52. 52. Human Rights CouncilHuman Rights Council• On 15 March 2006, the GA adopted ResolutionA60/251 to establish the Human Rights Councilto replace the highly politicized Commission onHuman Rights (as a subsidiary organ of the GA).• The Council consists of 47 Member States,which are elected directly secret ballot by theGA; the membership is based on equitablegeographical distribution.• Malaysia is one of the founding members.
  53. 53. 11. 4. 2 Monitoring mechanisms established by11. 4. 2 Monitoring mechanisms established bytreatiestreaties• International human rights treaties have theirown monitoring mechanisms for compliance.E.g., for the ICCPR, the monitoring body is theHuman Rights Committee (HRC); for CEDAW –the CEDAW Committee.• Three general monitoring procedures:(1) Period reports(2) Inter-State complaints(3) Complaints (communications) by individuals.
  54. 54. Effectiveness of the human rights monitoringEffectiveness of the human rights monitoringmechanism at the universal levelmechanism at the universal level• Human rights monitoring bodies are not courts of lawand as such their views or findings are not binding onStates parties.• There are neither sanctions nor legally bindingenforcement methods entrusted to these bodies.• This is because they operate in an area where Statesare not prepared to submit to international adjudication.• Further, the area of the international protection of humanrights covers matters that are politically, socio-economically and culturally sensitive.
  55. 55. 11.5 ENFORCEMENT AT THE REGIONAL11.5 ENFORCEMENT AT THE REGIONALLEVELLEVEL• It is difficult to reach agreement on human rightsat the universal level on account of conflictingideologies and interests.• Agreement is easier to reach at the regionallevel, where States are more likely to havecommon values and interests.• In Europe, the European Convention for theProtection of Human Rights and FundamentalFreedoms was adopted in 1950.• The convention creates the European Court ofHuman Rights (ECHR).
  56. 56. European Court of Human Rights (ECHR)European Court of Human Rights (ECHR)• Under the individual complaint procedure of theConvention, a national of any State party maybring an action against his own government forbreaches of human rights.• It is very much successful and has established aconsiderable amount of jurisprudence.• Non-compliance with judgments of the Court is ararity but in such a case the Committee ofMinisters of the Council of Europe can enforce it.
  57. 57. Other Regional human rights courtsOther Regional human rights courts• The ECHR is the most sophisticated and practicallyadvanced system of the protection of human rights.• There are other regional human rights treaties, which aremuch less effective than the European Convention.• In America, the American Convention on Human Rightswas adopted by the OAS in 1969. The Conventionestablishes an American Court of Human Rights(ACHR).• In Africa, the OAU adopted the African Charter of Humanand Peoples’ Rights in 1981. It establishes the AfricanCommission on Human and Peoples’ Rights.• Compared to their counterparts at the universal level,regional human rights monitoring mechanisms are moreadvanced. They are normally judicial bodies that canmake binding decisions.
  58. 58. 11.6 MALAYSIA AND HUMAN RIGHTS11.6 MALAYSIA AND HUMAN RIGHTS• In Malaysia, provisions on human rightscan be found in the Federal Constitution,Part II, Fundamental Liberties (Arts. 5 to13).
  59. 59. Art. 5: Liberty of a personArt. 5: Liberty of a person(1)No person shall be deprived of his life or personal libertysave in accordance with law.(2) Where complaint is made to a High Court or any judgethereof that a person is being unlawfully detained thecourt shall inquire into the complaint and, unless satisfiedthat the detention is lawful, shall order him to beproduced before the court and release him.(3)Where a person is arrested he shall be informed as soonas may be of the grounds of his arrest and shall beallowed to consult and be defended by a legalpractitioner of his choice.(4)Where a person is arrested and not released he shallwithout unreasonable delay, and in any case withintwenty-four hours…be produced before a magistrate andshall not be further detained in custody without themagistrates authority.
  60. 60. Art. 8: EqualityArt. 8: Equality(1) All persons are equal before the law and entitled to the equalprotection of the law.(2) Except as expressly authorized by this Constitution, there shall beno 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 theappointment to any office or employmentappointment to any office or employment under a public authorityor in the administration of any law relating to the acquisition,holding or disposition of property or the establishing or carrying onof 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 employmentconnected with the affairs of any religion …;(c) any provision for the protection, well-being or advancement ofthe aboriginal peoples of the Malay Peninsula (including thereservation of land) or the reservation to aborigines of areasonable proportion of suitable positions in the public service;
  61. 61. Article 10. Freedom of speech, assembly andArticle 10. Freedom of speech, assembly andassociationassociation(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 withoutarms;(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), suchrestrictions as it deems necessary or expedient in the interest of thesecurity of the Federation…, friendly relations with other countries,public order or morality and restrictions designed to protect theprivileges of Parliament…;(b) on the right conferred by paragraph (b) of Clause (1), suchrestrictions as it deems necessary or expedient in the interest of thesecurity of the Federation…or public order;(c) on the right conferred by paragraph (c) of Clause (1), …thesecurity of the Federation or any part thereof, public order ormorality.
  62. 62. Article 11. Freedom of religionArticle 11. Freedom of religion(1)Every person has the right to profess and practise hisreligion and, subject to Clause (4), to propagate it.(2)…(3)…(4) State law and in respect of the Federal Territories ofKuala Lumpur, Labuan and Putrajaya, federal law maycontrol or restrict the propagation of any religiousdoctrine or belief among persons professing the religionof Islam.(5) This Article does not authorize any act contrary to anygeneral law relating to public order, public health ormorality.
  63. 63. 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(CRC).
  64. 64. Human Rights Commission of MalaysiaHuman Rights Commission of Malaysia(SUHAKAM)(SUHAKAM)• In 1999, Human Rights Commission ofMalaysia Act was passed.• Art. 2: “human rights” refers tofundamental liberties as enshrined in PartII of the Federal Constitution.
  65. 65. Section 4. Functions and powers of theSection 4. Functions and powers of theCommissionCommission(1) In furtherance of the protection and promotion of human rights inMalaysia, the functions of the Commission shall be -(a) to promote awareness of and provide education in relation tohuman rights;(b) to advise and assist the Government in formulating legislationand administrative directives and procedures and recommend thenecessary measures to be taken;(c) to recommend to the Government with regard to the subscriptionor accession of treaties and other international instruments in thefield of human rights; and(d) to inquire into complaints regarding infringements of humanrights referred to in section 12.
  66. 66. Functions and powers of human RightsFunctions and powers of human RightsCommission [Cont.]Commission [Cont.](2) For the purpose of discharging its functions, the Commission may exerciseany or all of the following powers:(a) to promote awareness of human rights and to undertake research byconducting programmes, seminars and workshops…;(b) to advise the Government and/or the relevant authorities of complaintsagainst such authorities and recommend to the Government and/or suchauthorities appropriate measures to be taken;(c) to study and verify any infringement of human rights in accordance with theprovisions of this Act;(d) to visit places of detention in accordance with procedures as prescribed bythe 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….
  67. 67. Functions and powers of human RightsFunctions and powers of human RightsCommission [Cont.]Commission [Cont.](3) The visit by the Commission to any place ofdetention under paragraph (2)(d) shall not berefused by the person in charge of such place ofdetention if the procedures provided in the lawsregulating such places of detention are compliedwith.(4) For the purpose of this Act, regard shall be hadto the Universal Declaration of Human Rights1948 to the extent that it is not inconsistent withthe Federal Constitution.
  68. 68. Malaysian courts and human rightsMalaysian courts and human rights• Malaysia is not a party to the ICCPR and theICESCR.• It is, therefore, not surprising that the onlyhuman rights instrument that can be relied uponby human right lawyers in Malaysia is theUniversal Declaration of Human Rights (UDHR),which is not actually legally binding.• However, the interpretative response ofMalaysian courts to the UDHR is mainlyunfavourable. The total rejection of the UDHRcan be seen in Merdeka University Bhd case.
  69. 69. Merdeka University Bhd v Government of MalaysiaMerdeka University Bhd v Government of Malaysia[1981] 2 MLJ 356 (Abdool Cader J)[1981] 2 MLJ 356 (Abdool Cader J)• Held: “the Universal Declaration of Human Rights …isnot a legally binding instrument as such and some of itsprovisions depart from existing and generally acceptedrules. It is merely a statement of principles devoid of anyobligatory character and is not part of our municipal law.”• The decision of Merdeka University Bhd wasunchallenged even after the passing of the HumanRights Commission of Malaysia Act 1999, section 4(4),which can be seen in Mohamad Ezam case.
  70. 70. Mohamad Ezam bin Mohd Noor v Ketua PolisMohamad Ezam bin Mohd Noor v Ketua PolisNegaraNegara [2002] 4 MLJ 449,[2002] 4 MLJ 449, Siti Norma Yaakob FCJSiti Norma Yaakob FCJ“Notwithstanding s 4(4) of the Human Rights Commission of MalaysiaAct 1999, reference to international standards set by the UniversalDeclaration of Human Rights 1948…and several other UnitedNations documents on the right of access cannot be accepted assuch documents were not legally binding on the Malaysian courts.The use of the words ‘regard shall be had’ in s 4(4) of the HumanRights Commission of Malaysia Act can only mean an invitation tolook at the 1948 Declaration if one was disposed to do so and toconsider the principles stated therein and be persuaded by them ifneed be. Beyond that, one was not obliged or compelled to adhere tothe 1948 Declaration. This was further emphasized by the qualifyingprovisions of s 4(4) of the Human Rights Commission of MalaysiaAct which provided that regard to the 1948 Declaration was subjectto the extent that it was not inconsistent with the Constitution.”
  71. 71. Decisions favourable to the protection of humanDecisions favourable to the protection of humanrightsrights• Nevertheless, there are indeed a fewrecent cases which can be seen asenlightenment leading to a more liberalinterpretation and leaning more towardsthe recognition of the internationalprotection of human rights.
  72. 72. Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,Sagong Bin Tasi & Ors v Kerajaan Negeri Selangor & Ors,[2002] 2 MLJ 591, High Court[2002] 2 MLJ 591, High Court (Mohd. Noor Ahmad J).(Mohd. Noor Ahmad J).• The plaintiffs were ‘orang asli’ of the Temuan tribe. TheLand Administrator gave written notices to them tovacate the land they were occupying failing whichenforcement actions would be taken.• The learned judge traced back to the establishment ofthe Selangor Sultanate in 1766 and pointed out thatorang asli people occupied the lands in an organizedsociety and although the Sultan owned the lands, theywere left undisturbed to manage their affairs and way oflife thereon in accordance with their practices, customsand traditions.• By referring to the worldwide trend recognizing aboriginalrights, the learned judge upheld the propriety interest oforang asli in their customary and ancestral lands.
  73. 73. Abd Malek bin Hussin v Borhan bin Hj Daud &Abd Malek bin Hussin v Borhan bin Hj Daud &OrsOrs [2008] 1 MLJ 368[2008] 1 MLJ 368 (M. Hishamudin, HC, KL)(M. Hishamudin, HC, KL)• This is a very recent case dealing with the legality of anarrest under the ISA. The learned judge held that thearrest was unlawful under Article 5(3) of the FederalConstitution and pointed out that:“In dealing with art 5(3) of the Constitution, I am mindfulof the fact that I am presently dealing with thefundamental liberty of the citizens. The preservation ofthe personal liberty of the individual is a sacred universalvalue of all civilized nations and is enshrined in theUDHR. Article 5(3) of the Federal Constitutionguarantees every person in this country of his personalliberty and protection from arbitrary arrest particularlyarbitrary arrest by the State…. judges are protectors ofthe fundamental liberties of the citizens and that this is asacred duty or trust which Judges must constantlyuphold.”

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