Citizens’ role in protecting freedom


  • Reflecting On The Law
  • Thursday, 08 Dec 2016

We now recognise that food is as important as freedom, and bread as important as the ballot box.

TENTH December is Human Rights Day. In commemorating it we can rejoice that freedom is on the march globally. The human rights quest is at high tide. The ardour for liberty is spreading. The quest for the inalienable rights of human beings has gained a universal appeal.

It is now generally agreed that state sovereignty is a shield against external aggression; it cannot be used as a sword against one’s own nationals. Violations of basic rights in any land deserve worldwide condemnation because, in the words of Martin Luther King, “injustice anywhere is a threat to justice everywhere”. All nations of the world are under pressure to conform to the international law on human rights.

Human rights theory is developing new dimensions. Along with po­litical and civil liberties there is con­­current emphasis on socioeconomic rights. There is recognition that food is as important as freedom, and bread as important as the ballot box.

There is talk of the “right to deve­lopment” and “environmental sustainability”. John Rawls articulates the “rights of future generations” and “a just savings principle” to conserve a proportion of our capital accumulation for the benefit of future generations.

In constitutional law we talk of un­­enumerated, non-textual or im­plied rights. Inherent in the concept of life, liberty, property are many graces of civilisation that are not ex­­plicitly mentioned but may be deri­ved by a prismatic or constructive interpretation of the glittering generalities of our constitutional text.

The narrow idea that “liberty” is merely what the “law” permits is rejected. “Liberty” encompasses other inherent rights. The concept of “law” is not confined to state-made, enacted law but has elements of justice. Courts are entitled to read the concept of reasonableness into every law, imposing limits on liberty.

The tide of human rights is definite­ly lapping at our shores. But, of course, as with all tides, there is ebb and flow. For every step forward there is a step back. With regret we note that the gilt-edged provisions of our Constitution have not taken roots.

Supremacy of the Constitution remains notional. The potential of the chapter on human rights remains unexplored.

The imperatives of the Constitution have not become the aspirations of the people.

Parliament enacts many laws that are constitutionally controversial. Barring some honourable exceptions, judges are reluctant to strike down such laws as unconstitutional.

Parliament has not blossomed into the grand inquest of the nation.

The many check-and-balance insti­tutions of the Constitution and the legal system have failed significantly to hold the political executive to account.

Lately the law on sedition has been invoked repeatedly. The Secu­rity Offences and Special Measures Act and the Peaceful Assemblies Act were carefully drafted to achieve an equilibrium between the need for liberty and the demands of security. But some of the wholesome safeguards in these laws are being ignored.

The perception is widespread that the Public Prosecutor is not robust in equal enforcement of his prosecu­torial powers. In another arena, Syariah and civil court conflicts continue to cause pain and misery to many families.

In this milieu, what role can we ordinary citizens play to further human rights? I am reminded of Justice Learned Hand who said: “I often wonder whether we rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes. Liberty lies in the hearts of men and women; when it dies there, no Constitution, no law, no court can save it.”

While guarding our own rights, we should also be concerned about the rights of other human beings. The first function of freedom should be to free someone else.

Everyone can breathe easily if we adopt a spirit of moderation and to­lerance towards those who differ from us in religion, race, culture and ideological beliefs.

We must appreciate that correlative to all rights there are duties.

The way we drive our cars, park them inconsiderately, dispose of our garbage, smoke in public places and jump queues, reflects a callous disregard for the rights of others. Let us begin by respecting the rights of our neighbours, employees, colleagues and pupils.

Excessive individualism must be avoided. Freedom per se has no value. It is what freedom is for. It is the use to which it is put. It is the sense of responsibility and restraint with which it is exercised.

Misuse of the Internet is an example. There is a multitude of persons whose idea of liberty is the right to communicate whatever they please.

The Salman Rushdies and the Charlie Hebdos of the world prove to us that liberty can be the pretext of great crimes. As Lord Wright MR said in James v Commonwealth of Australia [1936] AC 578 at 672, “Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law”.

Our attitude towards public autho­rities, especially the police, should not be adversarial.

We should try to work with them and harness their formidable po­­wers for the good.

Their role in the control of crime and preservation of public order are important aspects of human rights protection.

Police powers are necessary to preserve the social fabric of society and to create an environment in which people can live without fear and can go about their pursuit of life without any unlawful hindrance from any quarters.

Many threats to human rights come from private or international centres of power and not from public authorities.

In the promotion of socioeconomic or “positive rights” we should campaign to enhance the benign role of the state.

In every state of the world, an equilibrium between citizens’ rights and police powers is needed. The might of the state and the rights of the citizens must be matched in an even balance.

Controlling the state without crippling it is the great challenge of every legal system. The challenge is a continuous one and we all have a role to play and to pay the price for our conscience.

Shad Faruqi is Emeritus Professor of Law at UiTM. The views expressed here are entirely the writer’s own.

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Opinion , Shad Faruqi , columnist

   

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