The ISA in Malaysia - Pt. III

Interface between Malaysian law and International law relating to Fundamental liberties

In the formation years of United Nations (UN), many countries including Malaysia shielded behind article 2(7) of UN Charter in arguing that any other human rights matter was strictly an internal affair. There are also arguments that fundamental liberties are already enshrined in the Article 5 to 13 of Federal Constitution, thus it is not necessary for Malaysia to ratify the international conventions.

As time passed by, this argument receives very little credence from the international community. Now, the human rights track record of a nation is usually measured by which conventions has the country signed and the extent to which the domestic legislation has incorporated the international human rights instruments promulgated by the UN.

The Supreme Court has ruled in the case Merdeka University Berhad v Government of Malaysia [1981] CLJ 175 that 1948 UN Declaration of Human Rights was a non legally binding instrument.

This is reaffirmed by the Federal Court in a recent case Mohamad Ezam Mohd Noor v Ketua Polis Negara & Others [2002]4 CLJ 309. Siti Norma Yaakob FCJ when invited to determine the extent and scope of Article 5(3) of Federal Constitution with regard to international standard namely Universal Declaration 1948, Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment ruled that the position is not changed by virtue of s4 (4) of Human Rights Commission of Malaysia Act 1999[18]. The Federal Court ruled that principles are only declaratory in nature and do not have the force of law or binding on member states. For the two rules, the court said that there are Malaysian statutes on the subject matter and it is no necessity to resort to the international rules.

The Federal Court ruling reflects the current law. In Malaysia, international law does not have any legal force because the definition of law in Article 160(2) Federal Constitution does not encompass international law.[19]

Dr Shad S Faruqi [20] has called for the amendment of The Interpretation Act 1948/1967 to provide for a rule of construction that national legislation should be interpreted as far as possible to accord with Malaysia’s obligations under international law.

It is submitted that Article 160(2) Federal Constitution and S4 (4) Of Human Rights Commission Act 1999 also be amended to include international conventions that Malaysia has signed and ratified.
The proposed amendments will arms the judiciary with the tools to interpret the national law with regards to international conventions that Malaysia has ratified.

Such a rule of construction will have positive implications in the maturity of democracy system and the protection of fundamental liberties.

Moving Forwards
It requires an entire constitutional rethink in order for Malaysian to enjoy the equivalent fundamental liberties on par with the others in the mature democratic and developed countries.

Constitutional Amendment Act 2001 (2), which included the word “gender” as a prohibited ground for discrimination, has broaden the concept of equality in the Federal Constitution. This is a move in the right direction.

The Executive should take up the Suhakam’s proposal on a National Human Rights Plan of Action[21]. Such plan will help to put the human rights improvement agenda in the radar screen of policy maker.

As time passed by, new needs arise. For instance, right to personal privacy to ensure that there is no misuse or abuse in the obtaining, holding and use of personal data is a fundamental liberties in the modern society.

It is perhaps timely to call upon the government to establish an Independent Royal Commission to review the Federal Constitution by benchmarking with the mature democratic nations and recommend fundamental changes to it which take into consideration new aspiration of Malaysians for a modern, democratic and developed nation.

--------------------------------------------------------------
[1] Tun Mohamed Suffian, An Introduction to Constitution of Malaysia (Second Edition) 1976, page 228
[2] Vision 2020 http://www.smpke.jpm/main/vision.htm [3] Sunday Star, November 5, 2000.
[4] Constitution of USA – First Amendment http://supreme.lp.findlaw.com/constitution/amendment01
[5] Harding, A: Law, Government and the Constitution in Malaysia, Malayan Law Journal, 1996 page 189.
[6] Kevin Tan Yew Lee, Yeo Tiong Ming & Lee Kiat Seng Constitutional Law in Malaysia and Singapore, Malayan Law Journal, 1991 page 791
[7] Patriot Act 2001 http://www.ins.usdoj.gov/graphics/lawsregs/patriot.pdf [8] Zadvydas v Davis http://caselaw.lp.findlaw.com/cgi-bin/ getcase.pl? court= US&navby=case&vol=000&invol=99-7791
[9] Reflections on the Malaysian Constitution, Aliran, page 16.
[10] HP Lee Constitutional Conflicts in Contemporary Malaysia, Oxford University Press 1995, page 102
[11] Lim Kit Siang, Crisis of Identity, 1986 page 131 [12] Reflections on the Malaysian Constitution, Aliran, page 102
[13] The Real Reason – Operation Lallang ISA Arrests Oct 27 1987 published by Democratic Action Party, 1988. page 84
[14] Suhakam Annual Report 2000, page 14
[15] Lim Kit Siang, Time Bombs in Malaysia (Second Edition) 1978 page 17
[16] Suhakam Annual Report 2000, page 28
[17] Ibid, page 25
[18] The Human Rights Commission of Malaysia (Suhakam), an independent national human rights institution was established by Parliament under the Human Rights Commission of Malaysia Act 1999. Section 2 of Suhakam Act: defines “human rights” as referring to “fundamental liberties as enshrined in Part II of the Federal Constitution”. Section 4(4) provides that regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution. This means that whatever rights and liberties not mentioned in Part II but referred to in the UDHR must be considered by Suhakam provided that there is no conflict with Constitution.
[19] Sunday Star October 15, 2000.
[20] Sunday Star, December 10, 2000.
[21] Suhakam Annual Report 2001, page 3