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Human Rights – Challenges And Opportunities in the 21st Century

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Shad Saleem Faruqi
Speech at the Human Rights Day 2019, 10 December 2019. 
Organised by SUHAKAM, Government of Malaysia and the United Nations at the Sheraton Hotel, Kuala Lumpur

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INTRODUCTION

We are all assembled here to reaffirm the idea that human rights are inherent and not dependent on the charity or generosity of the state. Human rights are our birth right because they come to us from a transcendental source that is prior to and independent of the law of the state.

This superior source is, depending on one’s system of beliefs, God, Nature, human reason, intuition or self-evidence.

 As we celebrate the advances in the quest for human freedom - and these advances are indeed many[1] – we must also take cognisance of the challenges, opportunities and regrettable regressions in the various aspects of contemporary human rights reality.

HUMAN RIGHTS HAVE MANY DIMENSIONS

Like a mansion with many rooms, the concept of human rights has many dimensions. Political science informs us of at least three dimensions: the “first generation” civil and political rights; the “second generation” socio-economic rights; and the “third generation” development rights. 
The first refers to such freedoms as protection from slavery, torture and arbitrary punishment. It encompasses the right to liberty, equality and property, the right to vote and the guarantee of due process. 

The second recognises the importance of the basic necessities of life like food, water, shelter, clean air, medicine, roads and schools. No prioritization between the first and second generation rights is intended because all human rights are interconnected and interdependent. Food is as important as freedom and bread as important as the ballot box. 

The third dimension refers to the right to sustainable development i.e. development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. Development policies must show regard for the rights of our children and our children’s children to inherit an earth that can sustain life and permit human flourishing.

CHALLENGES

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

  1. Challenges from unjust national laws, institutions and structures
  2. Absence of a national culture of human rights
  3. Cross-border violations
  4. Advances of science and technology that impinge on human rights and dignity.

1. OPPRESSIVE LAWS, INSTITUTIONS AND STRUCTURES

Malaysia is blessed with a written and supreme Constitution that provides for fundamental liberties and permits citizens to seek judicial review of parliamentary and executive actions that violate the law. Regrettably, the Constitution is not the polestar it was intended to be. Sixty-two years after Merdeka, it has not become the chart and compass, the sail and anchor of our legal endeavours.  Parliament and the executive behave as if their legislative competence is unrestrained.

There is a swell of domestic laws like POTA, POCA, SOSMA, AUKU, OSA, PPPA, Sedition Act and Societies Act that infringe the cherished principles of rule of law, constitutionalism, separation of powers, due process and natural justice. In the administration of these laws there is no “equal harassment under the law” and many powerful people and organisations are part of the “deep state” that enjoy impunity. It must be remembered that justice is not in legislation but in administration.   

In addition to oppressive laws and unequal enforcement, there are administrative policies and programmes, directives and guidelines that show insufficient regard for the need to preserve liberty, equality, property and balance the might of the state with the rights of citizens. Legal rights are often subordinated to administrative policies and Government Circulars. Malaysia is an “administrative state” in which the “dasar kementerian” and the “Pekeliling Perkhidmatan” are given primacy over the Constitution and laws.

Within the civil service, the police and local authorities, there is a pervasive 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 and actions often permit environmental degradation, overlogging of forests, pollution of rivers, razing of hills and displacement of natives from their ancestral homes. The Constitution’s rays of justice do not reach the abode of the orang asli, the aged, the disabled, the orphans 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 the substantial portion of the economy allocated to helping the needy is siphoned off for the purposes of the elite.[2] That is why there is lack of significant success in affirmative action policies.

Since the eighties 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. In some states, Muslims are fined and jailed for sins like skipping their Friday prayers. 

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.

2. LACK OF A 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”.

The critics of human rights have successfully denigrated the movement by associating the words “human rights” with fringe issues like homosexuality, LGBT etc. For many Malaysians, “human rights” are dirty words. The rights of others do not matter especially if the other is of a different race or religion.

In such a milieu a human rights culture has failed to develop. There is indifference towards structural injustices, authoritarian traditions, and racial and religious bigotry. Issues such as death penalty, preventive detention, torture in police custody, gender, race and religious discrimination, child marriage, corporal punishment in schools, endemic corruption in both public and private sectors and official abuse of power do not evoke strong response. There is lack of civic responsibility and no environmental consciousness. Human rights issues are often seen through the racial and religious lens rather than the prism of humanity.  This is, of course, a phenomenon in many other societies as well. Two successful examples of using race and religion to resist human rights demands were the vehement opposition to the Rome Statute and ICERD because they would allegedly weaken Islam, the Malays and the Rulers!  

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.

3. CROSS BORDER VIOLATIONS

The twentieth century saw concerted action against authoritarianism by the national state. The twenty-first century must seek protection for weak, under-developed nations against cross-border violations by predatory nations, mostly of the North Atlantic and their transnational corporations. If equality amongst individuals is a human rights goal, then equality amongst nations must also be an endeavour of international law. Why then is there such racial and regional inequality in the composition of international organisations like the UN Security Council, the World Bank and IMF?

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 moral panic in the USA and Europe against immigrants, refugees and asylum seekers fails to take note of why these desperate people are migrating and what responsibility the West had in causing the wars, conflagrations and famines that contributed to the tragic, mass movement of people across continents.

The world condemns drug trafficking - and rightly so - 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-seven years after the setting up of the UN, peace remains as elusive as ever.

In the 21st century, international institutions must improve their ability of to enforce the law against powerful countries like the USA, Israel, UK, France and China.  The de facto immunity enjoyed by the world’s Bushes, Blairs, Cheneys, Rumsfelds, Modis and many other mass murderers must end. These miscreants are perpetrators of genocide, crimes against humanity or war crimes in Palestine, Iraq, Afghanistan, Vietnam, Syria, Yemen, Myanmar, China, Kashmir, Guantanamo Bay and Abu Gharaib.   

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 the hazardous wastes of Australia, China and the North Atlantic.

Economic globalisation, with undoubted benefits for the world economy, has also become a danger to indigenous small-scale industries in the East which cannot cope with Western retail giants. Our indigenous resources, artefacts, 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 Asia and Africa are to be protected, the world needs to move away from the corporation-based society and to put economic activities under social control.

4. SCIENCE & TECHNOLOGY

The many 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 and some adverse implications for human rights. Cyber space 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, 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 lives, our reputation, our jobs and our bank savings are under threat from those who know how to abuse the exhilarating advances of modern technology.

CONCLUSION

Let me conclude by saying that the globalisation of the idea of human rights constitutes one of the greatest advances of the era. It is now accepted that “injustice anywhere is a threat to justice everywhere”. National sovereignty is a shield against foreign aggression. It cannot be used as a sword against your own people.

However new threats to human rights and human dignity are emerging nationally and internationally and in the realm of politics as well as economics.

There is no magic wand to resolve the problems the world of human rights faces. Nevertheless, we should not wring our hands in despair. In our own small way, we should contribute a trickle of effort that could become a torrent of pressure. We should not wait for Parliament, Ministers, or the AGC to amend and improve unjust laws and institutions. It is not the law that makes us free. It is we that make the law free.


[1] The blessings of Allah on Malaysia are many. There is peace, prosperity and a fair degree of social, religious, racial and regional harmony. These blessings require a separate and full treatment. However, in many areas, regression is visible. This essay is meant to caution on the challenges Malaysia is facing and the need to remain vigilant and respond to the alarm bells. 

[2] Wherever one looks there is looting of public funds. The financial shenanigans in 1MDB, MARA, EPF, Tabung Haji and RISDA are well known. The Auditor-General reports that for 2018, subsidies were paid to 11,712 dead farmers and 5,099 others who could not be traced! The padi fertilizer scheme is handed over by the Ministry to private companies and between 2016-2018 these companies exceeded the contract value by RM178.23 million.

Last Updated: 16/12/2019