asmah_chewan: RULE OF LAW AND VIOLATION OF HUMAN RIGHTS IN MALAYSIA

1.0 INTRODUCTION

The rule of law is an ideal of good government and just constitutional arrangements. At its inception it merely implied a preference for law and order over anarchy and strife. But over the years the concept has acquired legal, political and economic implications. Today, it overlaps with many other venerated ideals like those of limited government, constitutionalism, due process and just legality.

The main objective of rule of law in Malaysia is to control on arbitrary powers. The existence of a supreme Constitution, the safeguards for an independent judiciary and the constitutional power of judicial review, are clear proof that the legal system was built to protect the rule of law. A regular system of independent courts has existed since independence. Laws are made by Parliament or its delegates. No one is deprived of life, liberty or property saved under the law. No summary executions take place. The army and the police are under civilian control.

However, it must be noted that even though rule of law is such an ideal government, but if human rights are being violated grossly, then the principle of rule of law has no bearing. There are few human rights being violated which are the right to life, liberty and property, the right to due process of law, and et cetera. For instance, liberty of person as guaranteed under article 5[1], freedom of banishment and freedom of movement as stated under article 9[2] and the freedom of speech, assembly and association and few others can be violated by Sedition Act 1948, Peaceful Assembly Act 2012, Police act, Printing Presses and Publication Act and Internal Security Act 1960 by virtue of article 149 of Federal Constitution.

One thing that the informed have agreed upon is that the Rule of Law does not mean rule by law. The latter implies that any law, be it wicked or good, is valid and will be enforced. The former is a more complex proposition, for it means that we are ruled by laws and not the discretion of man and furthermore, that law has to guarantee certain principles.

1.1 History of Rule of Law

Rule of law derived the idea from A.V Dicey and his primary concern was for the avoidance of arbitrary and thus unjust power. To this end, he identified three main principles of the Rule of Law and these were, a person can only be punished after a fair trial, the law is to treat everyone equally and the rights of individuals are to be protected by law.

One of the main issues is the concept of ‘equality’. Taken at face value, Dicey’s ‘equality’ sounds very much like the Aristotelian concept of ‘formal equality’, where the government treats all persons the same. However, some of the principle of rule of law has been ignored to avoid harshness and which, in court opinion is not suitable to apply on some circumstances. For example, a child killing another person should not be given the same punishment as an adult. Which is killing with intention for adult, would be death sentence meanwhile, according to latest provision of Child Act, child who kills cannot be sentenced to death[3]. The rational is a child has not attained sufficient maturity yet in understanding the consequences of their act.

Apart from that, it is clear that the Reid Commission intended to build the Malaysian Constitution based on the doctrine of rule of law. Hence, in order to acknowledge and appreciate the position taken by the Commission, a simple reference must be made to Part II of the Federal Constitution, within which are embedded the fundamental liberty provisions prepared by the Commission. If the original renditions of Articles 3, 4, and 10 of the Reid Commission recommendations in regards of fundamental liberties had been accepted altogether, Malaysia would now be more officially rooted in the doctrine of rule of law than it is at present. In the draft proposal, Article 3(1) and 3(2) reads:

“The Constitution shall be the supreme law of the Federation, and any provision of the Constitution of any State or of any law which is repugnant to any provision of this Constitution shall, to the extent of repugnance, be void.”

“Where any public authority within the Federation or within any State performs any executive act which is inconsistent with any provision of this Constitution or any law, such act shall be void.”

Looking at the provision of Article 3(1) and (2) above, there is no doubt in coming to a conclusion that the Reid Commission was dedicated to the idea of having the Malaysian Constitution built on the noble foundations of the doctrine of rule of law. Taking its place, as stated under Article 4(1) of Federal Constitution came as a substitute for the Commission's draft Article 3. This peculiar line of reasoning is required due to the fact that the original purpose of Article 4 is evidently to set up the Constitution as the foundations of the rule of law. However, separating theoretical assumptions from real-world practice, it is still a debatable issue as to whether the Federal Constitution embodies this fundamental doctrine as part and parcel of our legal system.

2.0 PRINCIPLES OF RULE OF LAW

There are several kind of principles laid down in rule of law. In term of legality, the rule of law requires that a society must be governed by a government of laws and not by a regime of arbitrary powers. There must be supremacy of laws. Government officials must show respect for the law and must observe the limits on their power. Besides, all powers must be subject to limits. There must be controls on executive discretion so that discretionary authority does not degenerate into arbitrariness. To enforce the rule of law, there must be an independent judiciary with the power to enforce its verdicts without fear or favor. The judiciary must be independent and free from extraneous pressures. It also must be invested with all the necessary powers to interpret and enforce the law and to keep public authorities within the limits of their competence. This principle has been laid down under article 162(6) of Federal Constitution whereas court has power to modify any law which is considered to be inconsistent with Federal Constitution as supreme law.

Next, under the principle of rule of law, it has been made to be a just legality. Adherence to the law by the state is necessary but not enough. If the system of law is unjust and oppressive, adherence to it can become an instrument of tyrannical rule. The rule of law insists on compliance with some substantive human rights values. The law that reigns supreme must honor and promote individual freedom and dignity. In this sense, the rule of law is different from rule by law. Rule of law expresses ideals about citizen-state relationship. Besides the law must provide safeguard for liberty, equality and dignity as stated under fundamental liberties in Federal Constitution.

In addition, legal has guaranteed that human rights provided under rule of law are not enough. They must be accompanied by socio-economic and educational measures so that formal rights can find expression in reality and the individual can realize his dignity. There must be vigorous state support for socio-economic policies to help the weak, the oppressed and the marginalized. The state must be involved in social amelioration schemes to bring welfare to those who for whatever reason, are unable to actualize their freedoms and rights. The state must be committed to the welfare and to the rights and dignity of all its citizens.

On the other hand, principle of rule of law is also as a more effective government. The threat to the rule of law comes as much from abuse of liberty as from abuse of power. The government must be capable of enforcing law and order and ensuring socio-economic and legal justice. Hence, crime could be controlled.

3.0 RULE OF LAW AND VIOLATIONS OF HUMAN RIGHTS

3.1 Violation of Human Rights in Malaysia

There is several human rights violation happening in Malaysia. Human rights concerns include Malaysia’s poor ratification record on core international human rights treaties, restrictions on freedoms of expression and peaceful assembly, the preventive detention of criminal suspects for long periods of time without charge or access to a judge. In addition, there are also human rights violations at the hands of the security forces including torture and other ill-treatment. Other concerns include the treatment of migrant workers, indigenous peoples, refugees and asylum-seekers, as well as freedom of belief and religion, and also recently about LGBT[4] rights and discrimination.

Apart from that, there has been abuse of power by the police. This kind of abuse of power remained unchecked while the Government continued to drag its feet in setting up the Independent Police Complaints and Misconduct Commission (IPCMC) that had been recommended by the Royal Police Commission[5]. In 2013, SUARAM recorded 12 cases of deaths in police custody while a total of 124 people were shot dead by the police from 2009 to August 2013. There was also a case about Uthayakumar, which was a former Internal Security Act (ISA) detainee, was jailed for two years and six months over a sedition charge on June 5 and died under the custody of the police. While in prison, Uthayakumar alleged he was tortured and denied medical treatment. His wife, S Indra Devi went so far as to send a letter to Najib and Home Minister Ahmad Zahid Hamidi claiming that her husband who is a diabetic and suffers from a degenerative prolapsed disc in his spinal lumbar, had been locked up in dark isolation for 28-days and was forced to sleep on concrete despite the condition. She also alleged that he was fed food and water through unsanitary means. In fact, it was not just case about Uthayakumar only. It was like giving police veto power to do and detain people like provided under section 23 of Police. However, this kind of provision has been amended and replaced by Peaceful Assembly Act 2012 for social order and also to protect human rights and liberty of person as stated under article 5 of Federal Constitution.

Apart from that, in term of freedom of speech and expression, press freedom continued to decline in world rankings with Malaysia placed at an all-time low position of 145 out of 179 countries, the country’s worst showing since 2002. Malaysia’s 13th general election saw increased attacks on freedom of expression. In April 2013, just days after parliament had been dissolved and new elections declared, various alternative media websites including Free Malaysia Today, Malaysiakini, The Malaysian Insider and Sarawak Report were sustained restricted under Sedition Act 1948. Independent radio stations Radio Free Sarawak and Radio Free Malaysia also had their broadcasts systematically jammed. This is of course has become a controversial issue. Everyone wanted to be given freedom of speech and expression. However, even though Malaysia ranked as one of the most restricted country in giving such freedom, but under social order and for public welfare, such absolute freedom should not be given. Government has to control to keep the peace of the nation and it proven until now, Malaysia is one of the safest countries to live in compare to other nation. There has been few people detained and charge under Sedition Act 1948 for giving seditious statement such as the couple of Alvivi. They has made seditious statement by saying “Selamat berbuka puasa” while eating pork in a video that went viral on 2013. People presumed those couple were making fun of the religion of Islam. It proves that, in order to keep the peace and for public welfare, there is a need to control people’s rights and freedom.

In term of freedom of assembly as stated under article 10 of the Federal Constitution, the PPA 2012[6] was enacted by the government apparently to uphold, protect and promote freedom of assembly in 2012. The Act is riddled with inconsistencies. For example, there are contradictions in the definition of a moving assembly and a street protest. At least 26 people were charged under the PAA 2012 during the post-election rallies and 33 others were charged under Section 143, while 17 people were charged under Section 147 of the Penal Code for unlawful assembly and rioting. The right to assembly is also one of the controversial issues. Before, under Police Act and Internal Security Act, police can detain and arrest any person, who he belief has committed certain act prohibited by law. Then of course people who making unlawful assembly was caught and charge also. But now, those veto power from the police has been abolished and replaced by Peaceful Assembly Act. Some activist and people has claimed that the new act are making it worst and restrict more of the rights of the people, but government has think it through to prevent uproar and problem, then the assembly must be tighter such as giving notice to police 10 days before the assembly. All of these are being done in the name of social order even though people claimed it has violated human rights stated under Federal Constitution.

3.2 Principles of Rule of Law and Violation of Human Rights in Malaysia

Under the principle of rule of law, it is clear that administrative law principles of ultra vires and natural justice have grown stronger. These developments favor the idea of a government under the law. But laws like the Internal Security Act (ISA) and the Police Act give unlimited power to the executive. Many non-reviewable and non-justiciable powers permit uncontrolled executive discretion.

In term of human rights, the supreme Constitution and a large amount of legislation guarantee political and socio-economic rights. Elections are held regularly. The government is representatives of the people. Opposition parties and NGOs are allowed. But laws like the ISA and Police Act prevent citizens from exercising some of their rights. However, articles 149 and 150 itself has permit suspension of human rights even though it violates article 5 to article 13. This is under a reason where court believes that, people should not be given absolute power in those rights in order to prevent uproar from happening in Malaysia.

Having mentioned earlier on the fact that the rule of law is one of the fundamental principles of the constitution, it would appear that in Malaysia with our current written constitution, the doctrine is still regarded as well recognized and accorded with respect. For instance, we are told by our political leaders from time and time again that we are a government of laws and not men. This may not be an act of upholding the doctrine per se, but it shows that they know and respect the difference between both doctrines.

Dicey stated in his 1st postulate that the rule of law requires that no one would be punished except for a conduct which represents a clear breach of law. This would imply that all laws must be open, clear, and prospective in nature. Hence, in the case of Public Prosecutor v Mohamed Ismail[7], the defendant was charged with the offence of drug trafficking which was punishable with life imprisonment or death under section 39B(1) of the Dangerous Drugs Act 1952. While his trial was still going on or pending, the law was substantially amended in deliberation to provide for a mandatory death penalty. At the final stage of the said trial, the public prosecutor suggests the court to impose the enhanced penalty. In refusal to the request, the court held that the amendment could not be applied to the instant case, as it was only enacted after the offence was committed. At such, the decision of the said court was in line with the Article 7(1) of the Federal Constitution which is about protection against retrospective criminal laws and repeated trials.

In addition, when we discuss Dicey’s perspective of rule of law, it advocates for 'equality before the law of all classes to the ordinary law of the land administered by the ordinary law courts'. This means no one is above the law, and the society must be governed by law and that all must be equally subject to the law, and to law only. Making references to some court decisions would lead to such conclusion that the rule of law is recognized and much respected under the Federal Constitution. For instance, in the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia & Anor[8], the order of detention stated few grounds on which the supposed detainee was apprehended with the word 'or' and not 'and' in between. The court held that the statement in regards of the grounds in the alternative form denied the detainee the right to know the reason for his arrest, a constitutional right for the record. The decision of the court was in line with the Article 5(3) of the Constitution which is any person should have a right to be informed the reason of his arrestment as soon as possible.

Coming back to Article 4(1) of the Federal Constitution, as it is viewed as the foundation of the rule of law for the Constitution, probably it would be imperative to make reference to the case of Ah Thian v Government of Malaysia[9], with focus on the observation of Suffian LP. His Lordship observed that the doctrine of Parliament does not apply in Malaysia since here we have a written constitution. The power of Parliament and State Legislatures in Malaysia is limited by the Constitution, and they cannot pass any law as they please.

Disregarding other criticisms, it should be acknowledged that we do practice the basic checks and balances as required by the upholding of the doctrine of separation of power and the rule of law. For instance, as much as the criticisms were raised against article 159 of the Federal Constitution, the Federal Constitution did place limits on the power of amendment of the constitution. It is not mere theory but of legal reality.

Though the initiatives of the government in upholding the rule of law in certain extent should be rightfully acknowledged and recognized, the government should not have taken this for granted. This is due to the fact that there are still loads of weaknesses to be improved on as far as the operation of the rule of law is concerned. For an example, Article 150(3) of the Constitution in requiring the YDPA to lay the proclamation of emergency before both Houses of Parliament which are given power to pass resolutions to annul them and the executive in their given powers to enforce its will on Parliament under Article 55(2) to enable the government to rule the country by executive flat would inevitably, require the government to re-evaluate and re-look into the future of the rule of law under the Federal Constitution. No doubt, reformation needs to be done to improve the efficacy and efficiency of the existing checks and balances.

Not only that, the seemed-to-be positive initiative of the procedural limits on the power of Parliament in amending the constitution should not be taken for granted. Instead, we should study in depth the issues of the legitimacy and efficacy of the substantive limit. It is true that two-thirds majority is needed to make constitutional amendments. However, that does not mean that the Parliament has the power to pass legislation so long as the authority being exercised is legitimate and constitutional. It is still unacceptable for them to pass any laws to their discretions irrespective of the reasonability of the law.

In plus, we should always bear in mind that in rule of law, there is no room for unjust law. Thus, the assertiveness of the judges and the judicial creativity are important. This is so because the superior courts are the ones who are able to protect and defend the basic charter against all the evil hands and they are nonetheless, the ultimate arbiters of disputes between the citizen and the state and between federal and state governments. If they are deprived of such assertiveness and creativity, there would be no room for justice and equality.

On the other hand, it must be noted that the media could influence constitutionalism and rule of law in every imaginable ways. The media could ‘check’ on the government, it plays a vital role in the check and balance of the system. The media could raise issues that concern the laws and the people, and raise the awareness regarding such issues, which could in turn determine the constitution and the rule a country. The media, however arguably, is the only or at least, the most common avenue for the people to evaluate the performance of the government. And hence, the media has that magical power to rally masses to turn against the ruling government, rendering the people having opinions and criticisms towards government policies, and in turn, forcing the government to give in to the needs and wants of the people.

In addition, if injustices resulting from the transgression of rule of law are now widely reported in the local media, it would lead towards the respect and practice of the doctrine of rule of law. Thus, the government would be more cautious and more accountable for their actions, as the whole nation is watching. However, in the Malaysian context, this stage is extremely hard or impossible to achieve, as the Malaysian government has strict controls and restraints over the media and the government also owns the media through privatization and or a complex hierarchy of corporate companies.

It would seem so in Malaysia, the fundamental principle of constitutional supremacy that was brought to life under Article 4(1) that embeds the doctrine of rule of law, can only be maintained and achieved through judicial creativity in methods of interpretation of certain constitutional provisions which are regarded as a deterrent to the spirit of constitutionalism and the rule of law. It is about time for the Malaysian courts to shift from their reluctant attitude towards striking down legislation of the parliament, or even to the point of challenging actions of the executive on the grounds of unconstitutionality. We must always keep in mind that without the respect to the doctrine of the rule of law, the said democratic state will be short of the legal framework necessary for a civilized society to nurture and in turn give sufficient checks and balances on the executive and legislative branches of government and necessary legal foundations for fair electoral and political processes.

There are several Malaysian laws are being used to restrict basic human rights in Malaysia. Recent sweeping changes in these laws have been described by the government as human-rights reforms but, according to critics, have actually in some regards made restrictions even more stringent.

The country's Ministry of Foreign Affairs has defended its strict controls on human rights with the explanation that the nation takes a holistic approach to human rights in that it views all rights as indivisible and interdependent. In Malaysia, the rights of every citizen are protected by legal provisions in the Federal Constitution, but these rights are not absolute and are subject to public order, morality and security of the country. Hence, while claiming to uphold the universal principles of human rights, Malaysia finds it important to take into consideration the history of the country as well as the religious, social and cultural diversities of its communities. This is to ensure that the respect for social harmony is preserved and protected.

Apart from that, Malaysia is well known for arresting persons without warrants and detaining them indefinitely without trial, and for placing strict limitations on freedom of speech, press, assembly, and association in the name of social order.

There are several strong and sweeping pieces of legislation that have long been used by Malaysia to restrict the human rights of individuals and thus preserve, in its view as social order. In 2008, Amnesty International summed up the state of human rights in Malaysia in part by noting that the government had tightened control of dissent and curtailed the right to freedom of expression, arresting bloggers under the Sedition Act, using the Printing Presses and Publications Act (PPPA) to control the content of newspapers, and arbitrarily arresting several individuals under the Internal Security Act 1960 (ISA). Meanwhile in 2012, there were major changes in a number of these laws that were officially described as human-rights reforms but that have been widely criticized either for not going far enough or in fact, further restricting human rights.

The best known of these laws is the Internal Security Act 1960. Widely viewed as draconian, it permits long-term detention without trial, and over the decades has been used systematically against individuals who have been viewed, for various reasons as threats to Malaysia's government or to the social order.

Another powerful and widely employed piece of legislation, which dates back to 1948, when Malaysia was still a British colony, is the Sedition Act, which criminalizes speech or writing that is considered to be seditious. A great many critics and political opponents of the Malaysian regime have been arrested and held under the Sedition Act, the effect of which has been to restrict freedom of expression in Malaysia.

In addition, law that has passed in 1984, which is the Printing Presses and Publications Act, makes it a crime to publish anything without a government license that must be renewed every year by the Home Minister. This statute has been used to silence government critics and to ban various publications for a variety of reasons. As with the Sedition Act, the practical effect of the Printing Presses and Publications Act has been to severely restrict freedom of speech in Malaysia.

On the other hand, the Police Act 1967 allows the Malaysian police to detain persons without warrants, and has been used especially to restrict the freedom of assembly. Under the Police Act, police permits were required for gatherings of over four people, other than strikes. This is of course has violated article 5 and 10 of Federal Constitution.

However, Prime Minister Datuk Seri Najib Tun Razak announced that the ISA would be totally repealed and be replaced by a new law that incorporates far more judicial oversight and limits the powers of the police to detain suspect for preventive reasons[10]. The government also committed itself to the repeal of some of its other best known legal instruments for restricting human rights, including the Sedition Act and Emergency Declarations and Banishment Act. In addition, the government agreed to review several laws, including Section 27 of the Police Act, the Printing Presses and Publications Act and the Official Secrets Act.

In a June 2012, an article has been published in the East-West Centre in Asia Pacific Bulletin and reprinted in the Bangkok Post and on the website of Human Rights Watch, writer Mickey Spiegel noted that in April 2012, the Malaysian parliament had passed the replacement for the ISA, called the Security Offences (Special Measures) 2012 Act (SOSMA). Spiegel complained that SOSMA does not go far enough to protect the fundamental rights and freedoms of Malaysians. In fact, SOSMA is actually more repressive and retrograde than the ISA in some ways, an indication that the government was playing 'bait and switch' with human rights.

For instance, coupled with amendments to other laws, SOSMA tightened restrictions or banned outright activities which are already under constraint by adding limits to previously unrestricted activities, and broadened police apprehension and surveillance powers in new and innovative ways. In addition, it further erodes citizens’ individual protections, such as ceding to the police rather than judges the power to intercept communications.

On the other hand, the Peaceful Assembly Act 2012 (PAA) replaces Section 27 of the Police Act, which required police permits for large gatherings. Under the new act, such permits are not necessary. Instead, organizers must give the police 10 days’ notice of any planned gathering, after which the police will reply, outlining any restrictions they wish to place on the gathering. The new act forbids street protest, prohibits persons under 15 from taking part in gatherings, prohibits persons under 21 from organizing them,and bars them from taking place near schools, mosques, airports, railway stations, and other designated places. Though touted as a reform of Section 27 of the Police Act, the PAA has been severely criticized by the government opponents and by others as more restrictive than the legislation it replaced, with one opposition leader saying that the PAA gives ‘absolute powers to the police.’

Prime Minister Datuk Seri Najib Tun Razak has signed the first human-rights declaration by the ASEAN nations[11]. It was an action that officially committed the nation to its first foreign convention to promote fair treatment of every individual irrespective of race, religion and political opinion. This signing, it was noted, took place at a time when Malaysia had come under close international scrutiny for its alleged mishandling of several recent human rights issues, including crackdowns on two major pro-democracy protests[12]. The Human Rights Commission of Malaysia expressed its disappointment that the declaration permits restrictions to be made on grounds wider than what are accepted internationally, and pointed especially to General Principle 7, which declares on the one hand, that all human rights are universal, indivisible, interdependent and interrelated, recognizes on the other, that Member States may take into consideration their political, economic, legal, socio-cultural, and historical backgrounds in the realization of human rights in their countries

CONCLUSION

In the nutshell, the rule of law by Dicey is an ideal law and should be respected and followed. The principle of rule of law also protected basic human rights and Federal Constitution itself following the rule of law like stated under fundamental liberties of citizen. However, violation to some of the human rights proving that the principle of rule of law has no meaning. Liberty of person, freedom of expression and speech are not absolute and are being controlled by virtue of article 149 and 150 of federal Constitution. Police Act, Sedition Act, Peaceful Assembly Act, Internal Security Act and few other provisions are restricting human rights and it is not consistent with the purpose of rule of law.

However, it must be noted that if these human rights are not giving any restriction, then people can do anything they pleased even in making any statement that can stir social harmony and causing uproar. Under this reason, government are not giving citizen absolute rights to speak and expressed as they pleased. The public welfare must be the main priority.