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THE ROLE OF FUNDAMENTAL LIBERTIES IN THE EVOLUTION OF MALAYSIA AS A DEMOCRATIC SOCIETY

To save one life is to save humanity itself. As such, the world must respect the individual whose basic rights have too often been scarified for the good of the state and the sovereignty of the nation must no longer be used as a shield for gross violations of human rights. What begins with the failure to uphold the dignity of one life, all too often ends with a calamity for entire country. Indeed, the mission of the 21st century should be defined by a few more profound awareness of the dignity of human life, regardless of race, religion, gender or circumstances of birth. We should all bear in Mind that today’s real border are not between nations but between powerful and powerless, free and fettered, privileged and humiliated. And no walls can separate humanitarian or human rights crisis in one part of the world from national security crisis in another.

The Universal Declaration of Human Rights adopted by the United Nations General Assembly in 1948 describes what is considered in the last century to be the fundamental consensus on the human rights of all people in this world in relation to such matters as security of person, slavery, torture, protection of the law, freedom of movement and speech, religion and assembly as well as rights to social security, work, health, education, culture and citizenship. It clearly specifies that these human rights apply to all equally “without distinction of race, colour, sex, language or other status” (Art. 2) and defines any discrimination as illegal. It is intended to strengthen preservation of human rights at the international level albeit not a legally- bidding document on member states but generally accepted as guidelines for world peace. Truly, the issue of human rights has become fashionable to such an extent that it has dominated world politics. Today, we are witnessing the birth of international institution established under the purpose of prescribing to nation states how they should treat their own citizens.

The demand for civil and political rights have appeared louder as Malaysia develops and its citizenry becomes better educated and more sophisticated. For increasingly larger segments of Malaysia Society, a full stomach is no longer enough. The growth of a politically conscious civil society has meant that government action that infringes the fundamental rights of its citizens no longer remains unchallenged, hence the demand for a transparent and accountable government that respects human rights is a fundamental concern of Malaysian civil society today not forgetting that democracy and social justice depends on equal rights for everybody.

Human rights has long a controversial matter. If we pay a little attention to the details of our everyday life, it is not difficult to discover the lack of human rights protection. For instance, the political development in the past few years, the right to peacefully assemble has emerged an urgent issue. There were complaints from opposition parties and non-governmental organisations of denial of police permits and the use of heavy-handed tactics including using tear gas, batons and water canons laced with chemicals to break up assemblies and demonstrations. The recurrence incidents of such violent means of crowd control are particularly worrying in view of the excessive force displayed by the police. In short, the police have over-reacted when dispersing the illegal assemblies and blame should also goes to some existing practices and policies of the so called law-enforcing agencies as the contributory factors to the blatant human rights violation.

It is vital for police to achieve a balance between maintaining law and order and respecting civil liberties and humanities. Being a body with a vast range of powers of arrest, use of force and power to detain, is often subjected to abuse as violators or potential violators of laws expressing human rights standards. As policing is a powerful and essential factor in the protection and promotion of civil and political rights of all citizens, the police play an important role as facilitators. In fact, the right to peaceful assembly must be given due recognition as it is provided for under Part II of the Federal Constitution despite being governed by restriction made in the interest of peace, stability and public order. Moreover, peaceful assemblies do not necessarily disrupt or pose a threat to the nation’s security and in the case of crowd dispersal, the emphasis should be restrained on the part of the police rather than decisive response via the use of force which proved to be brutal.

In this connection, ways ought to be sought in enhancing the concept of human rights and why such rights must be respected. It is thus imperative for the police to develop and incorporate human rights elements in their training curriculum and subsequently implement an action plan for observance of human rights in the performance of their duty. Police play a crucial role in defending human rights if they carry out their tasks fairly, effectively, responsibly, lawfully and humanly, with no conflict between human rights and law enforcement. Failure to do so would ultimately draw severe criticisms from the Malaysian public, besides the international community. Therefore, it is paramount for human rights issue be addressed in an amicable way in accordance with the Human Rights Commission of Malaysia Act 1999 since true peace is justice to all, freedom and adherence to human rights. By all means, any law in place that restrict the right to peaceful assembly should be repealed or amended. Allegation against the police revolving around police behaviour, misuse of power against those in detention, interrogation methods and inaction on genuine complaints need to be fully investigated with appropriate action taken against the culprits!

Malaysian Election
Since Malaysia claims to be a democratic country, elections should be held without hindrance, political parties given the right to participate in polls that are credible, just and free. Every citizen, irrespective of political background and leaning must be allowed to exercise his or her legitimate rights freely, the true enjoyment of human rights. To stress, no one should be against democracy with freedom and the like an indispensable ingredient of our civilized society with no body being prevented or obstructed to form social organisation or political parties. Towards this end, the government needs to give speedy approval of new associations or political organisations if it is in line with the right policy to allow freedom of speech and expression, instead of finding fault to delay or disapprove their registration for obvious reasons. Furthermore, public rallies should be permitted while conditions should not be set or imposed on opposition parties to carry out their political activities. For that matter, the opposition parties should not be made afraid to make their views known and that Malaysians are free to exercise their vote without fear of retribution. Definitely, democracy credentials got to be consolidated by paying greater due care and understanding of human rights, not curtailed.

ISA and Prisoners in Malaysia
Under the Internal Security Act 1960, the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985, the Home Minister may detain a person for a period not exceeding 2 years to prevent him from acting in any manner detrimental to national security. These laws however do constitute a contravene to Articles 3, 9 and 10 of the Universal Declarations of Human Rights 1948. The very existence of these “draconian laws” served notice that there would be no authentic human rights in the country. Thus, these should be reviewed to limit their scope if it is sincere in safeguarding or defending human rights. Indisputably, the government duty to maintain peace and order should not be justified at the expense of freedom of thoughts. A case in pertinent: terrorism should be countered with a healthy respect for human rights as we tend to forget that the prime aim of combating the menace of terrorism is to conserve human rights. The argument that human rights impeded the effort to face terrorism was misguided for in the end, anti-terrorist legislation or provision that fail to abide by international law have the effect of undermining and, in some cases, destroying hard-won human rights.

Adequate steps have to be taken to ensure that all prisoners are made aware and understand their constitutional right, upon explanation, to consult and be defended by a legal practitioner of their choice. Presently, most prisoners had not seen a lawyer and appeared to be ignorant of such rights and many made their pleas without knowing the legal implications. It is also the duty of the prosecution to prove that confessions by an accused is made voluntarily and that there is no prejudice against him or her, so much so that cautioned statements are obtained through inducements, threats or oppressions. In addition, witnesses should not fear intimidation with dire consequences if they testify in court so that the course of justice would not be retarded.

Juveniles arrested by police should not be housed together with adults in police lock up bearing the fact that they are underage. And young prisoner ought not be held too long in prison while awaiting trial or sentencing as this would be harmful to the mental and emotional development of the person involved. Moreover, based on the principle that “a person is innocent unless proven guilty”, a student should not be expelled from school only on the basis that person has been detained by the police and charged in court. It is necessary that Article 133A of Evidence Act 1950 need, be amended to enable children (12-18 years old) to give evidence in court through video recordings without straining or traumatising them emotionally. (Currently, the country law does not accept children evidence unless it is corroborated with other proof to support the statement). Most importantly, mandatory sentences should be sparingly used because sentencing is traditionally within the purview of judges and sentences should depend on the circumstances of each case as a blanket policy has not always do justice. Admittedly all prisoners have the right to a fair and unbiased trial without delaying.

Malaysian Judicial
The Malaysian Constitution provides for an independent judiciary but it is never perfect. Government action and constitutional changes legislation and other factors erode judicial independence yet reinforce executive influence over the judiciary. In short, the professionalism of the judiciary remains open to question. For example, the legislature can facilitate the independence of the judiciary via its law-making power that engenders respect of the rule of law. This applies to where the executive attempts to use the parliamentary process to weaken the independence of the judiciary. In this context, the existing role of the judiciary is being increasingly questioned, with ever more and more frequent allegation that it is usurping legislature and executive authority. This is likely to bring separate branches into conflict and lead to challenges or assertions that the judiciary is taking over the function of elected parliament or responsible executive. In this regard, a court cannot actively seek to participate in the discussion of an issue, or else it will spark starting point of waning public confidence on the judiciary.

Freedom of Expression
The Printing Press and Publication Act, the Sedition Act and Official Secret Acts are repressive laws that stifle the right to freedom of expression and forced most print and electronic media in the country to practise self-censorship or being insufficiently free of government influence. There is a growing concern that with censorship and licensing problem, writers and publishers, even artistes and performers face extreme difficulties in expressing their opinion, worst with the banning of some of their work. Given the restrictions placed on what the citizens can or cannot say and the assault that they have suffered, culminate in wiping out civil rights. Similarly, the University and University College Act has curbed the students freedom of speech and movement because under the Act, they are prohibited from doing anything they wish and have to request approval of the vice-chancellor of the university before carrying out activities on campus to get their voices heard.

Women rights
As human beings, women should not be treated prejudicially, excluded or sidelined and should in no way be stopped from being involved in any social, economical, political, cultural and environmental issues. Actually, women should be given equal opportunity just like men in all possible endeavours. Although Article 8(2) of the Federal Constitution July 2001 bar discrimination based on sex for women to enjoy the same rights as men in every aspect of human activities on the basis of equality, human rights and freedom, what will a more balance legislature mean for the rural women who choose to stay in their villages equipped with little more than primary to lower secondary education and who experience equality only when it comes to working in the paddy fields alongside the men. Will this uplift their rights and their awareness of these rights? Furthermore, rural women are subjected to Customary Law, ignorance and social stigma with their rights decided by laws encoded in under cultural values. The rules on divorce are different as a mother’s custodial rights over her children. Often alimony is minimal, property rights imbalanced, hereditary laws unfavourable. While it is all very well to legislate for rights, of the intended beneficiary is not knowing of what she is entitled to, then it is effectively a futile exercise. Without lines of communication and a lack of access to information, rural women are cut off from their right to knowledge about what they are entitled to.

Domestic Violence
There is still room for improvement with regard to the implementation of the Domestic Violence Act 1996 in order to give better protection and justice to the victims of domestic violence. Procedures need to be strengthened and simplified , bureaucratic red tape reduce and provisions in the law amended where necessary .There should also be greater consciousness of the dynamics of violence, as well as sensitivity and perceiving by agency officials and staff handling such heinous crime . Apart from this, there is a need for a separate definition of domestic violence in the Penal Code. The flaw here is that it does not take into account the dynamics of domestic violence to include mental harassment suffered a result of harassing phone calls, threatening letter or messages and stalking outside offices and home . All these actions are tantamount to mental harassment but the police cannot do anything against the estranged husband simply because they do not fit the provisions of the Penal Code.

Sexual abuse and harassment
In recent years, there have been drastic increased in the number of cases of sexual abuse and harassment in the country that draw grave cause for concern. Yet many go unreported. Not many women would lodge report on for example, sexual abuse or harassment and even after reports were made, they were withdrawn later due to embarrassment, a sense of helplessness and the fear of being ridiculed. Worst still fearing they might lose their jobs, pressure from families and friends coupled with the fear of bringing the matter to court cause victims of sexual harass meant refrain from raising the problem and therefore have to suffer in silence with little recourse for assistance or console.

Child protection and guidance
Every child has the right to grow up in a safe and nattering decent environment, and rely on adult for protection and guidance to ensure proper development. However, abuse of the child-sexual or emotional, physical or nutritional, accidental or non-accidental-tends most often to be ignored or marginal list as such and instead as the parents to discipline and to build effective parent –child relations. Social ills such as child prostitution, child labour and other deviant and sick forms of child victimization, harm and negligence, are not peculiar trend emerging only nowadays and by no means a woe of modern society. Their basic right to free expression, education and information on abuse, child labour, personal safety, street children or dropouts, incest, rape and molestation, not excluding pornography must be upheld. What goes unreported, unexposed that swept under the carpet only serves to bewitch innocent minors and entrap them in untold ways, in defiance of the child Act 2001.

Disabled people
The disabled people are the less privileged and vulnerable and their needs should be catered in a liberal approach. In this respect, they have the inherent right for human dignity, economic and social security and to secure employment according to their capabilities. However, their rights have always being overlooked and unfairly treated, exploited, discriminated and abused or degraded. For examples , in accordance with section 3 (1) of the Education ( special Education ) Regulation 1997, physically impaired pupils with the mental ability to learn like normal pupils , and pupils with multiple disabilities or with multiple disabilities or profound handicaps , or with severe mental retardation , are not eligible to attend the special education programmers in government and government-aided schools. In protecting the right of the disabled , Article 12 of the Federal Constitution needs to be altered to provide that there shall be no discrimination against any citizen on the grounds only of religion, race, descent and place of birth, to include : “any disability that the person suffers from” in the administration of any education institution maintained by a public authority and , especially, the admission of student to allow these unfortunate groups to gain access to training and academic facilities.

It is also necessary to create more “barrier-free” cities and townships for the disabled. All new and existing buildings, shopping complexes, hospitals, banks, offices, restaurants and public amenities like buses and taxi should take into account the needs of the disabled, judging from the fact that social welfare programmes for the disabled are often limited due to tight budget constraint in the public sector in the country even though they deserved greater attention, better treatment and wider opportunity, so as to enable the disabled to become as self-reliant as possible. Towards this end , legislative reforms in many other spheres such as provision of goods and services, housing and accommodation, are also added advantages in building a “ handicapped friendly” society , like wheelchairs for their conveniences.

Consumers’ right
Although the level of consumerism awareness in Malaysia has reached a respectable level, with various laws to protecting their own rights as consumers, there is still lack of interest among the public in protecting their own rights as consumers. The sad truth is that the knowledge among Malaysian consumers of their rights of choice, redress, safety, to a healthy environment, information, education and representation is pitifully low. Rural consumers, for instance, can use their right to choose and the right to information before embarking on their purchases to ensure that they make the right decisions. If they use their purchasing power wisely and carefully and only buy goods and services offered at fair prices, they would then have achieved the objective of consumers’ right to reasonable prices.

It is very clear that today ‘s consumers must go beyond the traditional platform of keeping vigilance against unjustified price increases , goods sold past their expiry date and products of poor quality. They must be conscious that malpractices come in sophisticated guises and the fact that inferior products are not always easily identifiable. There are regulation and regulations, but can they be a solution to these problems? Undoubtedly, rampant malpractices among traders and manufacturers were due to consumer‘s own ignorance and apathy. So, the best form of consumer protection is self-protection.

The government could still do much to help consumers though literature and publications on the merits and demerits of a certain product in the market. To ensure cheap and quality goods are on sale only, the government needs to discuss with manufacturers the best acceptable price for a particular product and the creation of a system for standardizing prices of goods sold. For enforcement of consumer legislation to be effective, constant random checks should be done beyond people‘s knowledge so as to give a semblance of a genuine desire to protect consumer rights.

Teaching in mother tongue
The right to be instructed in a pupil’s mother tongue is under threat. New regulation was proposed to limit teaching in the mother tongue in favour of English Language is such subjects as Science and Mathematics beginning from Primary one since 2003, in all National and Vernacular primary school throughout the nation. The fact that bilingual teachers in short supply was ignored while some bilingual programmers showing good progress were put aside. A nightmare comes true for mother tongue primary education in Malaysia? Inarguably, there are many lessons we in Malaysia can learn from the example of education policies in other countries. To understand that education is an emotive an issue here as in western Democracies Indeed , the issue of mother tongue primary education in the country is tied up with the overall right of minority groups here. It is seen as a barometer of how other minority rights such as freedom of worship and assembly will be insulated and upheld.

The customary rights of the natives
The customary rights of the natives traditional and have for many years been substantially choked by the federal and state government in spite of the so called protection provided for in the Aboriginal Act, the Land Ordinance of Sabah and Sarawak Land Code. The introduction of legislation and policies which recognized the ownership of Land only through issuance of certificates and titles meant that indigenous communities who have not applied for title deed to their land or have had their applications rejected or ignored, face threat of eviction by the relevant authority. This make the most dispossessed native tribes in Malaysia now have the least to gain from native title. More often than not, the claimants to land failed to establish, as they must by law, that they had continued to occupy or practice traditional custom on that land or still had a connection with the land by virtue of inheritance. Such ruling thus further narrowed and certainly wiped out the definition of native title or ownership in respect of the acknowledgement and reorganization that the country’s original inhabitants had some legitimate rights to the land claimed as by their colonial master before the country gained independence.

Really, such laws and customs needed to have continued and persistently be interrupted if the definition of native title in the Native Title Act were to be satisfied. Given such scenario, there should be some kind of regulation or protection for the natives in the countryside in terms of their right. To them, land is all the more precious for which their very survival depends. They can till the land, raise animals and plant crops for subsistence use. Being impoverish, large tracts of their ancestor land remain barren due to lack of capital, manpower and expertise to derive profitable gain. Nevertheless, possession right to the land by the indigenous groups need to be respected and any dispute in pertinent be settled via mutual negotiation and discussion among all parties concerned, for a win-win compromise instead of going through courts where the government has the upper hand.

Migrant workers
Our country houses a sizable number of migrant working as minds, plantation and construction workers, among others. However they are often afforded no dignity at all. Other points of contention are social segregation and discriminatory laws and policies that violate basic rights and deny them to social services owing to their lack of status in this country. Yet most of these migrant workers have no choice but to stay on whatever the conditions. Apart from enduring the harsh work and poor living conditions, these in particular from Indonesia , Philippines, Burma and Bangladesh have to put up with stereotyping based on race and subjected to unfair mistreatment. Locally , references like “Bangla “ and “Indon” denote negative perceptions and these ethnic groups have been blamed for a variety of ills from the spread of diseases to the increase in crime rates. Restrictive and exclusionary immigration policies, these foreign workers faced die-hard old prejudices at the Immigration Department, police station and even within the legal process, which makes it difficult for them to obtain redress or remedies.

Unquestionably, all migrant workers and their families must be accorded fundamental human rights by putting in place a set of international standard to address the plight, welfare and basic rights of migrants plus obligations and responsibilities of receiving nation like Malaysia. Minimum standards of protection in legal, political, economic social and cultural rights should also be established for them. Lest we forget, these foreign workers are also human beings. They do not come here to be abused or be treated unfairly. They are from poor countries who came seeking for better wages and living standards offered and to send back money to their loved ones back home. Just imagine how we Malaysia would feel when we read or learnt that our workers who work overseas are being ill-treated. In response, we of course demand justice and insist our people in foreign land get the same if not better working and living conditions that we enjoy in our own country!

Human rights in the country
No doubt, the protection of human rights in a country is the function of national human rights commissions, the office of ombudsman and office-ail committees established by the Government. In Malaysia, the formation of Suhakam( Human Rights Commission) has given added assurance in the protection of human rights for everybody . It was established in 1999 in accordance with provisions under the Human Right Act 1999. Among the roles and functions of Suhakam were to in still awareness and educate the masses on human rights, to constructively advise the Government on human rights and investigate complaints on human rights violation. In carrying out its prudent responsibility, Suhakam is committed to hold dialogues with various groups, including governmental agencies and non-governmental organizations, to gather valid information on various issues about human rights in the country that needed to be improved, without fear or favour.

Besides focusing on freedom of expression and politics, the human right concept also cover a wider area including social, culture and religious aspect. In our concerned priority to defend and safeguard democratic principles, we want to feel free to do, what we consider right. There is nothing wrong with this, so long as our actions do not contrary to the norms or the established value systems of our society, so that everyone is not only able to benefit from a reasonable standard and quality of life but also unhampered access to sustainable reforms or changes towards the goal of a progressive society on par with international standard on human rights. We need to be on track with true democracy with adoption of more liberal ideas of the concept. Hence, it is always positive to inculcate an early value system of human right and to introduce such rights to the civil service, police and school and children so as to appreciate and treasure the absence of war or crime-free and that world peace is synonymous with human rights.