IT has been reported in the local media that the new Foreign Minister, Datuk Saifuddin Abdullah, has pledged to push for the ratification of six international human rights conventions in Malaysia as part of the commitments of the Pakatan Harapan government.
The said pledge should be viewed as a significant step towards making Malaysia a “human rights-friendly nation”.
The move will first require the re-shaping of Malaysia’s foreign policy and then the domestication of international human rights instruments to local legislations.
In addition and more importantly, it requires revisiting the provisions for fundamental liberties in the Federal Constitution as promulgation of new federal laws must be consistent with the mother law.
Currently, Malaysia’s human rights situation is rated as unsatisfactory largely due to overpowering legislative control and overzealous enforcement of the law by enforcement agencies. This curtailing of the fundamental liberties enshrined in the Federal Constitution has been constantly criticised in foreign and local human rights reports.
Transforming all international human rights instruments into domestic legislations can be deemed as ambitious since it requires serious political will and also involves a long process of legislative reform and activism by parliamentarians, civil society, enforcement agencies, prosecutors and judges.
To date, Malaysia has ratified the Convention on the Rights of the Child (CRC), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Convention on the Rights of Persons with Disabilities (CRPD).
Out of the nine core international human rights instruments, Malaysia has yet to ratify six, namely the International Convention on Elimination of All Forms of Racial Discrimination (ICERD), International Convention on Civil and Political Rights (ICCPR), International Convention on Economic, Social and Cultural Rights (ICESCR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture or UNCAT), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
Besides the nine core instruments, Malaysia has yet to fully embrace the Rome Statute of the International Criminal Court due to several issues, including the domestication process of the Rome Statute and the unique application of the complementarity principle where national law prevails over the Rome Statute unless it is proven that the state is unwilling and unable to enforce the law. The status of the Yang di-Pertuan Agong as the Supreme Commander of the Armed Forces can be subjected to prosecution for major crimes committed under the Rome statute.
State ratification of any international instrument is a sovereign call and would normally require a policy decision by the Government on whether to proceed or bypass the international legal obligation.
While international legal obligations dictate the direction of the law, States must ensure that at the national level, these international legal frameworks are placed on the ground. Ironically, States may agree to be part of the international legal system by declaring their commitment to ratify it but many fail to ensure compliance at the national level.
There are only two ways through which States can comply with their international legal obligations: by observing or respecting their national laws (constitution or statute law) which are consistent with international legal norms; and by making those international legal norms or obligations part of the national legal or political order, that is they become domesticated (internalised).
To internalise these international norms and obligations, Malaysia must therefore take into account the following considerations:
1. How does it meet its obligations under the ratified treaties?
2. What are the measures or policies taken by the Government to implement or comply with its international obligations as contained in the ratified instruments?
3. What are the roles of domestic courts in this regard?
These issues require a substantial review and stock-take of the present laws relating to human rights in Malaysia.
Another significant challenge is the reception of international legal norms into the national legal system. This will depend on whether the state adopts the monist or dualist approach.
Monists view international law and national law as part of a single legal order. Under this approach, international law is directly applicable in the national legal order and there is no need for any domestic implementation to be introduced by the legislative body. This approach is common in France, Holland, Switzerland, the United States, several Latin American countries and some francophone African nations.
Dualists, on the other hand, view international and national law as distinct legal orders. For international law to be applicable in the national legal order, it must be received through domestic legislative measures, the effect of which is to transform international rule into a national one. It is only after such transformation that individuals within the state may benefit from or rely on international law.
To the dualist, international law cannot claim supremacy within the domestic legal system, although it is supreme in the international legal system. This method of incorporation is commonly applied in the UK and its Commonwealth jurisdiction and most Scandinavian countries.
As Malaysia falls in the dualist category, it requires the Government to legislate the international human rights instruments into domestic legislation before Parliament. Only upon gaining majority view can the international instruments be transformed into local legislations.
PROF DATUK DR RAHMAT MOHAMAD
Dean and Professor of Law
Faculty of Law, Universiti Teknologi MARA