Definition of International Human Rights Instruments
International treaties and even declarations can, over time, obtain the status of customary international law. International human rights instruments can be divided further into global instruments, to which any state in the world can be a party, and regional instruments, which are restricted to states in a particular region of the world. Most conventions establish mechanisms to oversee their implementation.
In some cases these mechanisms have relatively little power, and are often ignored by member states; in other cases these mechanisms have great political and legal authority, and their decisions are almost always implemented. Examples of the first case include the UN treaty committees, while the best exemplar of the second case is the European Court of Human Rights. Mechanisms also vary as to the degree of individual access to them. Under some conventions – e. g. he European Convention on Human Rights – individuals or states are permitted, subject to certain conditions, to take individual cases to the enforcement mechanisms; under most, however (e. g. the UN conventions), individual access is contingent on the acceptance of that right by the relevant state party, either by a declaration at the time of ratification or accession, or through ratification of or accession to an optional protocol to the convention. This is part of the evolution of international law over the last several decades.
It has moved from a body of laws governing states to recognizing the importance of individuals and their rights within the international legal framework. 2. 1 Situation in Malaysia “MALAYSIA has only signed two out of the eight core international human rights treaties,” says Alice Nah, National Human Rights Society (Suhakam) executive committee member. “As time goes on, however, Malaysia’s reluctance to sign these treaties will become more untenable, particularly if it wants to be a recognised and respected member of the United Nations (UN),” she tells The Nut Graph in an e-mail interview.
Malaysia is seems to be miles away from international human rights goals as Malaysia still impose certain limits to their citizens on some human rights freedom. Before this, the detention of activists and opposition politicians under the Internal Security Act (ISA) before it was abolished was said to be one of the biggest reluctant towards the international human rights treaties proposed by Universal Declaration of Human Rights (UDHR). Thus the question arises is why does Malaysia seems to be so reluctant towards the international human rights treaties?
Tan Sri Simon Sipaun, Human Rights Commission of Malaysia (Suhakam) vice chairperson, says the commission has recommended for the government to ratify the treaties on economic, social and cultural rights, and on civil and political rights but there has been no positive response so far. “I imagine that the government must have its own reasons for not ratifying them at the moment. Possibly one of the important factors which the government has to consider before deciding is associated with the (bumiputera) affirmative policy which could be interpreted at the UN level as discriminatory,”
Another Suhakam commissioner, Datuk Dr Denison Jayasooria, elaborates, “The continued reliance on legislation which violates fundamental liberties such as the ISA on preventive detention, the Official Secrets Act and the Printing Presses and Publications Act on freedom of expression makes it difficult for Malaysia to ratify the UN bill of rights. The human rights treaties specify what states can and cannot do to people which they are legally binding. Perhaps Malaysia is afraid of making such commitments. However, In any part of the earth, there is a time and tide for everything. This happens to be a time when the human rights quest is at high tide. All sections of society, including members of the exalted institution of the judiciary, must take note that freedom is on the march. The spirit to seek for liberty is spreading. The questions deals on human rights and freedom being published everywhere. The idea of fundamental rights forms part of the legal fabric of every society .
It is now recognized that though state sovereignty is a shield against external aggression, it cannot be used as a sword against one’s own nationals. Human rights abuses in any land deserve world-wide condemnation because, Martin Luther King once said, “injustice anywhere is a threat to justice everywhere”. Human rights issues have become globalised. All nations of the world are under massive political pressure to conform to the international law on human rights. There are nearly one hundred international treaties, covenants, declarations and protocols on human rights issues.
The most important from the human rights and perspective are the following: 1)The Universal Declaration of Human Rights (1948) 2) International Covenant on Civil and Political Rights (1976) 3)International Covenant on Economic, Social and Cultural Rights (1976) 4) Standard Minimum Rules for the Treatment of Prisoners (1957/1977/1984) 5) United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) (1990) 6) Basic Treatment for the Treatment of Prisoners (1990) ) Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 8) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) 9)Principles on the Effective Prevention and Investigation of Extra-Legal Arbitrary and Summary Executions (1989) 10) Code of Conduct for Law Enforcement Officials (1979) 11) Basic Principles for the Use of Force and Firearms by Law Enforcement Officials. THE LINKAGE OF UDHR AND THE FEDERAL CONSTITUTION
A large number of provisions in the Universal Declaration of Human Rights (1948) find their correspondence in the Federal Constitution of Malaysia. Among them are: 1)Article 5 – Personal Liberty Articles 3, 9. 2)Article 6 – Abolition of slavery and forced labour 3)Article 4 4)Article 7(1) Prohibition of retrospective criminal laws. 5)Article 7(2) – Protection against double jeopardy 6)Article 11(2) 7)Article 8 – Equality and non-discrimination Articles – 2, 6, 7, 23(2). 8)Article 9 – Protection against banishment and freedom of movement )Article 10(1)(a) – Freedom of speech Article 19 10)Article (10)(1)(b) – Freedom of assembly Article 20(1) 11)Article 10(1)(C) – Freedom of association Articles 20(2), 23(4) 12)Article 11 – Freedom of religion Article 18 13)Article 12 – Rights in respect of education Article 26 14)Article 13 – Right to property Articles 17, 27(2) 15)Article 14 – 28 Right to citizenship Article 15 16)Article 119 – Right to vote in elections Articles 21(1) & 21(3) 17)Article 25(2) – special protection for motherhood and childhood. 18)Article 27 – right to cultural life 9)Article 29 – duties to the community. 20)Article 5 – protection against torture or cruel, inhuman or degrading treatment. 21)Articles 8-10 – right to seek redress before a court. 22)Article 11 – presumption of innocence 23)Article 12 – right to privacy, family, home or correspondence. 24)Article 14 – right to asylum against persecution. 25)Article 16 – right to marry and found a family. 26)Article 21(2) – equal access to public service 27)Articles 22, 25 – right to social security, basic necessities. 1. 2 Human Rights in Malaysia Courts
In the real case, Malaysia actually has not ratified most international human rights covenants and Treaties though in their constitution provides few Articles regarding the issue of human rights. Even the treaties that are ratified are not self executing. Unlike in the USA or Germany the Malaysian Constitution does not contain a clause to confer legal status on international treaties. As such, in Malaysia treaties that are signed by the executive are binding internationally but need incorporation by the national legislature to form part of the law of the land and to be enforceable in the courts.
In the case of R v Chief Immigration Officer, Heathrow Airport ex p Salamat Bibi (1976) 3 All ER 843. A treaty signed by the executive cannot change the law of the land. If it were to be so, that would result in law making by the executive in derogation of the powers of the national legislature. That will be a serious violation of the doctrine of separation of powers.. The International law, whether customary or contractual, is not law per se ie in municipal systems. The reception of international human rights law in national courts poses many legal problems.
In case of conflict between international laws and national laws, courts of most countries including Malaysia adopt the rule that national law prevails. In the legal theory of Austinian positivism, law is a command of the sovereign and a product of state action. Extra-territorial laws cannot be granted the nomenclature of law unless they are authorized by the national legislative authority. Furthermore it is stated in Article 160 of Malaysia’s Federal Constitution that International law is not part of the definition of ‘law’ in the stated Article under the Malaysia’s Federal Constitution.