Keeping up with the challenges


  • Reflecting On The Law
  • Thursday, 19 Dec 2019

We have made great strides in protecting basic human rights and freedoms, but there are always threats to counter. We fight best when we fight together.

DEC 10 was Human Rights Day, a reminder that human rights are inherent and not dependent on the state’s charity or generosity.

As we celebrate the many advances in the quest for human freedom, we must also take cognisance of the challenges, opportunities and regrettable regressions.

Dimensions: Like a mansion with many rooms, human rights have many dimensions.

Political science informs us of at least three dimensions: civil and political right, socio-economic rights and development rights.

No prioritisation between the various categories is intended because all human rights are interconnected and interdependent.

Food is as important as freedom and bread as important as the ballot box.

Challenges: I see four theatres of human rights violations where challenges confront us and opportunities beckon:

• Challenges from unjust national laws, institutions and structures;

• Absence of a national culture of human rights;

• Cross-border violations; and

• Advances of science and technology that impinge on human rights and dignity.

Oppressive legal structures: Malaysia is blessed with a written and supreme Constitution that provides for fundamental liberties.

Regrettably, the Constitution is not the polestar it was intended to be. Parliament and the executive behave as if their legislative competence is unrestrained.

There is no dearth of domestic laws like the Prevention of Terrorism Act, Prevention of Crime Act, Security Offences (Special Measures) Act, Universities and University Colleges Act, Official Secrets Act, Printing Presses and Publications Act, Sedition Act and Societies Act that impose excessive restraints on human rights.

Additionally, in the administration of these laws, there is no “equal harassment under the law” and many powerful people and organisations enjoy impunity.

In addition to oppressive laws and unequal enforcement, there are policies, programmes, directives and guidelines that in our “administrative state” are given primacy over the Constitution and laws.

Within the civil service, the police and local authorities, there is a culture of subservience to the political elite.

The professionalism and check and balance that the public service should supply to the political executive is largely absent.

Government policies permit environmental degradation, overlogging, river pollution, razing of hills and displacement of natives from ancestral homes.

The Constitution’s rays of justice do not reach the Orang Asli, the aged, the disabled, the orphans, the widows and the needy. Quality education in public schools is a thing of the past and affordable medical treatment in public hospitals is becoming more and more difficult.

Corruption is endemic and a substantial portion of the economy allocated to helping the needy is siphoned off for the purposes of the elite. That is why significant success in affirmative action policies is rare.

Since the 1980s, a resurgent Muslim religious bureaucracy brooks no opposition to its version and vision of Islam. Diversity of opinion is criminalised. Books are banned. Foreign scholars are arrested and deported. Minority groups within the religion are vilified, demonised and prosecuted. Vigorous moral policing is widespread.

The judiciary is under an oath to preserve, protect and defend the Constitution but, barring some honourable exceptions, our courts were, till 2017, extremely reluctant to review legislative and executive measures on the touchstone of the Constitution.

However, a judicial renaissance appears to be in the air and the swallows of spring are audible.

Lack of human rights culture: Human rights require socio-economic and cultural prerequisites. These are not fully in place. Our post-1969 education system and our race-based political culture perpetuate racial and religious polarisation and prejudices. Hate speech is common and goes largely unpunished.

There is widespread suspicion of and disrespect for “the other”. Human rights issues are often seen through a racial and religious lens rather than the prism of humanity.

This is, of course, a phenomenon in many other societies as well.

Due to lack of constitutional and human rights literacy, there is indifference towards structural injustices, authoritarian traditions, and racial and religious bigotry.

Issues such as the death penalty; preventive detention; torture in police custody; gender, race and religious discrimination; child marriage; corporal punishment in schools; endemic corruption in both the public and private sectors; and official abuse of power do not evoke strong responses.

There is lack of civic responsibility and environmental consciousness.

The courageous, small minority that advocates fidelity to the rights of all irrespective of race, religion or gender and pleads for moderation and tolerance, is denigrated as disloyal to its race, religion and nation and criticised for its “human rightism” and liberalism.

Cross-border violations: The 20th century saw concerted action against authoritarianism by the national state.

This century must seek protection for weak, under-developed nations against cross-border violations by predatory nations of the North Atlantic and their transnational corporations.

Every so often we read of “regime changes”, “humanitarian interventions”, “pre-emptive wars” and economic blockades by North Atlantic nations against poor Third World nations like Palestine, Iraq, Afghanistan, Libya, Syria, Yemen, Venezuela, Nicaragua and Iran.

All wars, by whatever description, are a devastating violation of human rights. Economic blockades impose vicarious punishment on innocent children, women and the elderly. The world condemns drug trafficking but the lucrative trade in weapons of mass destruction by the merchants of death is given respectability.

Nuclear weapons remain in place despite the pretences of the Non-Proliferation Treaty.

Militarism fuels the conditions for the loss of life and the violation of the socio-economic rights of many impoverished Asian and African states. Seventy-four years after the setting up of the United Nations, peace remains as elusive as ever.

In the 21st century, international institutions must improve their ability to enforce the law against perpetrators of genocide, crimes against humanity and war crimes.

The culpability for the impending environmental catastrophe, depletion of the ozone layer and the overfishing of the seas falls mostly on Western shoulders. Poor countries of Asia and Africa have become the dumping ground for hazardous wastes.

Economic globalisation has metamorphosed into a threat to indigenous small-scale industries in the East that cannot cope with Western retail giants. Our indigenous resources, artefacts and herbal medicines are falling to Western patents and trademarks. A National Heritage Protection Law is needed at both national and international levels.

The debt stranglehold is suffocating many Asian and African nations. If human rights in the 21st century are to be protected, the world needs to move away from the corporation-based society and put casino capitalism activities under social control.

Science and technology: The numerous exhilarating advances of science and technology like genetic engineering, artificial intelligence, computerisation, information explosion and the rise of alternative means of communication, have a dark underbelly.

Cyberspace has become a convenient medium for hate speech and incitement to violence. Techniques of surveillance have put the right to privacy in mortal danger. Artificial intelligence, and the use of robots and computers pose a threat to the livelihood of workers and their right to organise into unions.

In the post-truth era of “deep fake”, our family life, reputation, jobs and bank savings are under threat from those who know how to abuse technology.

In sum, despite the progress of freedom, new threats to human rights and human dignity are emerging nationally and internationally and in the realm of politics as well as economics. Cross-border as well as private centres of oppression within each state are going unchecked.

There is no magic wand to meet the challenges. We should, nevertheless, not wring our hands in despair. We should come together; contribute our trickle of effort that could transform into a torrent of pressure. We should not wait for Parliament, Ministers or the Attorney General’s Chambers to improve unjust laws and institutions.

Remember, it is not the laws that make us free; it is we that make the laws free.

Emeritus Prof Shad Saleem Faruqi is Tunku Abdul Rahman Professor at Universiti Malaya’s law faculty and holder of the Tun Hussein Chair at the Institute of Strategic and International Studies Malaysia. He wishes all Christian readers Merry Christmas and Happy New Year. The views expressed here are entirely the writer’s own.

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