Human Right Issues in Malaysia
HUMAN RIGHT ISSUES AND PROBLEM. DISCUSS
(By: Mohd Radzi bin Abdul Hamid)
‘Human rights are the foundation of human existence and coexistence. Human rights are universal, indivisible and interdependent. Human rights are what make us human. They are the principles by which we create the sacred home for human dignity’
Kofi Annan
INTRODUCTION
On 31 August 2008, Malaysian celebrated the 51st Independence Day. We come from a long way as a federal constitutional monarchy with a population of approximately 26.6 million with multi-ethnic. Malaysian practiced parliamentary system of government headed by a prime minister selected through periodic multiparty elections. The National Front, a coalition of political parties dominated by the United Malays National Organization (UMNO), has held power since 1957 (hopefully will not end at 16 Sep 2008). The most recent national elections were conducted in a generally transparent manner so call, but the opposition complained of the ruling coalition's exploitation of the powers of incumbency. Even in last Permatang Pauh election, we had observe the government politician has misused the government properties such as executive jet, manipulate the media, government agencies etc. At the same time they blamed the opposition with cruel actions against theirs supporters. What ever happened, the government still maintained effectively control of the security forces in order to maintain peace and harmony. Is it to maintain the peace and harmony, any government has to do that? Why peace and harmony so important?
After 51 years of independence and we live in peace and harmony, the government able to take care and generally respected the human rights of its citizens; however, there were problems in some areas. The government had been accused to abuse human right in some areas such as did not conduct a transparent and sincere investigation towards deaths that occurred during apprehension by police or while in police custody. Other problems included police abuse of detainees, overcrowded prisons, statutes to arrest and detain persons without charge or trial, and persistent questions about the impartiality and independence of the judiciary. The government continued to restrict freedom of press by saying the media is free and independence, association, and assembly and placed some restrictions on freedom of speech, including prohibitions of organized public discussions about "sensitive" topics. Violence against women remained a problem. The country was a destination and transit point for trafficking in women and girls for the purposes of prostitution and domestic servitude. Latest case is blindly charge sodomy cases on Anwar Ibrahim without consider the right that he or his family has.
This paper will discuss about issues and problems of human right in Malaysia, mainly. A few important aspects will be discuss accordingly such as the definition of human rights, the history of human right, human right in religion, and United Nation and human right. As a military personal, not to forget the human right at war. The discussion on human rights in Malaysia will cover rules and laws, issues and problems, human right commission (SUHAKAM), case study (Meor Atiqulrahman and Coporal M.Moorthy) and the issues of total human right in Malaysia.
HUMAN RIGHT DEFINITION
Traditional Understanding
Traditionally understand, human rights are the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. According to Richard and Burn (2006), human rights begin with ‘the devine right of kings’ in those episodes of Rom, Babylon and Athens. Because the kings is so powerful and have the total right, they are wrongly use their right. Than, the traditional understanding toward human right as Devine right of kings change to “… a bill of right is what the people are entitled to against every government on earth…”. With this understanding; people or ‘rakyat’ start to fight against the king. It comes the era of church vs king.
The core for traditional definition is ‘human basic needs’ such as foods, lands, beauty women, place to stay peacefully, and it’s day-to-day life. The traditional definition still valid and applicable until now, but with the rapid change and fast growth especially in life style, different requirements, different sentiments etc; the definition should be more vide and objective. This is the main reasons for ‘rakyat’ to stand-up and against the king. In some countries such India, Indonesia, and Nepal (recently), they managed to thrown their king.
Modern Understanding
In 20th century, everything has changed from traditional way to something new which more than modernization. So globalize. It is also changed the definition of human right because of the advance of society. The definition of human rights from the perspective of narrow or so traditional way, political self-interest has rendered the phrase virtually meaningless. Everything from the right of capitalists to freely exploit labor or ‘rakyat’ to the right of terrorists to plant bombs, commit murder are defended under the banner of human rights and questioning the ‘peribumi’ rights. These definitions of human rights are of no value to the billions of people around the world striving for a society fit for human existence (McIntyre, Richard and Ramstad, 2002).
A modern definition of human rights must be based on what is required by all human beings to exist. And a country did not stand alone. In other words, when we talk about human rights, we are talking about those rights which flow from the simple fact that a human being exists and from no other considerations. Human right is not only to entertain palace requirements but also looks for ‘rakyat’ needs. It also involved our neighbors and even our neighboring country.
In modern living, the categories of rights exist in a complex, modern society, such as the rights of women, children, workers and minorities. These categories of rights belong to individuals as a result of their membership in a collective within society. Ignatieff and Michael, (2001), stated that the issue of minority rights can be dealt with in a modern and comprehensive way only if every individual's rights are guaranteed by virtue of their being human. If society were to be based on such a fundamental law, with mechanisms to ensure it in practice, the issue of minority rights would also effectively be solved. No longer would minorities and collectives in the society be treated as "special interest groups and thus marginalized, with their needs turned into mere policy objectives for this or that political party, or left to the whim of bureaucrats or whichever party happens to form a government. But in our country, the minorities is immigrant such as Indian and Chinese. Either you agreed or disagreed, they are still holding the immigrant title because of their origin regardless where they born. To avoid fell uncomfortable by calling ‘immigrant’, the government had created term of ‘non-bumiputra’ even for third generations they had born here, Malaysia. Even that, the government still catered for their rights. To be more specific, modern definitions had divided human right to two categories is entitlement rights and personal rights.
a. Entitlement right
Entitlement rights are those rights which society must provide every human being so that they can exist in a modern society. Entitlement rights, such as the right to a livelihood and to a socially acceptable level of food, clothing and shelter are rights which, though recognized by the United Nations Universal Declaration of Human Rights. The right to an education, to health care and to economic, social and personal security is also basic rights of entitlement to which every individual has claim.
b. Personal right
Personal rights are those rights concerning control by an individual of their own person. Whereas entitlement rights are demands on society to which every individual has claim, personal rights concern prohibitions against the violation of the individual, of their mind and body, by society. Of these, the right to conscience is the most fundamental, for without the right to think and express opinions, how can an individual be considered fully human? The right to privacy and the right of an individual to sovereignty over their own body are also fundamental human rights.
In our country, it is clear that our government has given a sufficient respect to human rights in terms of the demands of individuals on society. The right to a livelihood, an education, adequate health care and all other such entitlements are reduced to mere policy objectives which are subordinated to the demands of the financiers for maximum returns on their investments. However there have a few cases which shown we do not have total personal right such as case of Meor Atiqulrahman, Hajjah Halimatunsaadiah and Corporal M.Moorthy (claimed by the family).
HISTORY OF HUMAN RIGHT
Anything else in this world is claim civilized by the west even human right. The people in the West have the habit of attributing every good thing to them selves and try to prove that it is because of them that the world got this blessing; otherwise the world was steeped in ignorance and completely unaware of all these benefits. Now let us look at the question of human rights. It is very loudly and vociferously claimed that the world got the concept of basic human rights from the Magna Carta of Britain. Although the Magna Carta itself came into existence six hundred years after the advent of Islam. But the truth of the matter and the magic is that until the seventeenth century no one even knew that the Magna Carta contained the principles of Trial by Jury, Habeas Corpus, and the Control of Parliament on the Right of Taxation (James, C.H, 1992). If the people who had drafted the Magna Carta were living today they would have been greatly surprised if they were told that their document also contained all these ideals and principles. They had no such intention, nor were they conscious of all these concepts which are now being attributed to them. In fact the Westerners had no concept of human rights and civic rights before the seventeenth century because of the ‘devine right of kings’.
Periodically, westerner’s human right is not the first one. In fact, before the Babylonian era (1750 B.C.E), the prophet of Adam and Hawa has civilianized the world. Allah S.W.T stated in ‘Surah Al-Maidah, 27-31; “And the story of the two sons of Adam (Habil and Qabil) in truth; when each offered a sacrifice (to Allah), it was accepted from the one but not from the other. The latter said to the former: "I will surely kill you." The former said: "Verily, Allah accepts only from those who are Al-Muttaqun (the pious)." "If you do stretch your hand against me to kill me, I shall never stretch my hand against you to kill you: for I fear Allah, the Lord of the `Alamin (mankind, jinn, and all that exists)." "Verily, I intend to let you draw my sin on yourself as well as yours, then you will be one of the dwellers of the Fire; and that is the recompense of the Zalimin (polytheists and wrong-doers);" So the Nafs (self) of the other (latter one) encouraged him and made fair-seeming to him the murder of his brother; he murdered him and became one of the losers; Then Allah sent a crow who scratched the ground to show him to hide the dead body of his brother; He (the murderer) said: "Woe to me! Am I not even able to be as this crow and to hide the dead body of my brother?" Then he became one of those who regretted”
Hawa gave two twin birth of Qabil and Iqlima and Habil and Lubuda. Later, Allah asks Prophet of Adam to married them. As a father, Adam have a right to decide; he decided that Qabil will marry Lubuda and Habil will marry Iqlima. At the earliest of human era, Qabil had ask his rights, he refused to married Lubuda. He stated, he has the right to married his sister because Iqlima was better and more beautiful than Lubuda. The Prophet of Adam did not agree with the Qabil request but Adam still considers the rights of his son. Prophet of Adam asks both of them to offer a sacrifice to Allah as a ‘korban. Whose sacrifice or ‘korban; are accepted, then he got the rights to choose to married whom. Both of them agreed on those terms. Qabil as a farmer offered a bundle of bad plants seed and Qabil as shepherd offered a fat goat that he has. After Allah granted the goat, Habil make his decision to married his sister, Iqlima. Even though at the beginning, they agree to term but Qabil still did not satisfied. Later, he killed Habil by throwing a stone at his brother head. After murder his brother, Qabil become confusing and did know what to do with his brother dead body while the group of cannibal birds flying around waiting to eat the dead body.
Allah S.W.T had created a scene how a crow buried other dead crow by digging a hole. By looking to those events, Qabil learn how to manage his brother dead body. From their generations, the world community grows and grows and the human rights aspect also developed accordingly. In this story, we can learn a lot of human rights even at the earliest stages of human civilization. First the rights of the leader or father (Adam), the rights of son or person (Qabil), the right of everybody (Qabil and Habil) and even the rights of human dead body.
But the according history record (periodically) the human civilized as follows:
a. 1750 B.C.E : Code of Hammurabi, Babylonia
b. 1200 - 300 B.C.E : Old Testament
c. 551 - 479 B.C.E : Analects of Confucius
d. 40 - 100 C.E : New Testament
e. 644 - 656 C.E : Koran
f. 1215 : Magna Carta, England
g. 1400 : Code of Nezahualcoyotl,
h. 1648 : Treaty of Westphalia, Europe
i. 1689 : English Bill of Rights, England
j. 1776 : Declaration of Independence, United States
k. 1787 : United States Constitution
l. 1789
: French Declaration on the Rights of Man and the Citizen, France 1791 -United States Bill of Rights
The Magna Carta itself is not so absolute or the first because there have a few rules and procedures had been practices before that such as eras of Adam and Hawa (as per explain earlier), the Code of Hammurabbi was created ca. 1760 BC and the Right of Athenian during the Athen period.
a. Code of Hammurabbi
The Code of Hammurabi, the best preserved ancient law code, was created ca. 1760 BC (middle chronology) in ancient Babylon. It was enacted by the sixth Babylonian king, Hammurabi. Earlier collections of laws include the codex of Ur-Nammu, king of Ur (ca. 2050 BC), the Codex of Eshnunna (ca. 1930 BC) and the codex of Lipit-Ishtar of Isin (ca. 1870 BC). At the top of the basalt stele is a bas-relief image of a Babylonian god (either Marduk or Shamash), with the king of Babylon presenting himself to the god, with his right hand raised to his mouth as a mark of respect.
The text covers the bottom portion with the laws written in cuneiform script. It contains a list of crimes and their various punishments, as well as settlements for common disputes and guidelines for citizens' conduct. The Code does not provide for an opportunity for explanation or justification, though it does imply one's right to present evidence. The stele was displayed for all to see; thus, no man could plead ignorance of the law as an excuse. However, in that era few people except scribes could read. For a summary of the laws, see Babylonian law.
Hammurabi (ruled ca. 1796 BC – 1750 BC) believed that he was chosen by the gods to deliver the law to his people. In the preface to the law code, he states, "Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land.". The laws are numbered from 1 to 282 (numbers 13 and 66-99 are missing) and are inscribed in Old Babylonian cuneiform script on the eight-foot tall stele. It was discovered in December 1901 in Susa, Elam, which is now Khuzestan, Iran, where it had been taken as plunder by the Elamite king Shutruk-Nahhunte in the 12th century BC. It is currently on display at the Louvre Museum in Paris.
The code is often pointed to as the first example of the legal concept that some laws are so basic as to be beyond the ability of even a king to change. Hammurabi had the laws inscribed in stone, so they were immutable. The Code of Hammurabi was one of several sets of laws in the Ancient Near East. Most of these codes come from similar cultures and racial groups in a relatively small geographical area, and they have passages which resemble each other. The earlier Code of Ur-Nammu (21st century BC), the Hittite laws (ca. 1300 BC), and Mosaic Law (traditionally ca. 1400 BC under Moses), all contain statutes that bear at least passing resemblance to those in the Code of Hammurabi and other codices from the same geographic area.
(Notes on Codes of Hammurabbi, see Appendix 1)
b. Right of Athenian
Athenian democracy developed in the Greek city-state of Athens, comprising the central city-state of Athens and the surrounding territory of Attica, around 500 BC. Athens was one of the very first known democracies. Other Greek cities set up democracies, most but not all following an Athenian model, but none were as powerful or as stable (or as well-documented) as that of Athens. It remains a unique and intriguing experiment in direct democracy where the people do not elect representatives to vote on their behalf but vote on legislation and executive bills in their own right. Participation was by no means open to all inhabitants of Attica, but the in-group of participants was constituted with no reference to economic class and they participated on a scale that was truly phenomenal. The public opinion of voters was remarkably influenced by the political satire performed by the comic poets at the theaters (JACT and JACTGC, 1984).
Solon (594 BC), Calisthenics (509 BC), and Ephialtes of Athens (462 BC) all contributed to the development of Athenian democracy. Historians differ on which of them was responsible for which institutions, and which of them most represented a truly democratic movement. It is most usual to date Athenian democracy from Cleisthenes, since Solon's constitution fell and was replaced by the tyranny of Peisistratus, whereas Ephialtes revised Cleisthenes' constitution relatively peacefully. Hipparchus, the brother of the tyrant Hippias, was killed by Harmodius and Aristogeiton, who were subsequently honored by the Athenians for their alleged restoration of Athenian freedom.
(Notes on Right of Athenian, see Appendix 2)
Magna Carta
Magna Carta (Latin for Great Charter, literally "Great Paper"), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English charter originally issued in 1215. It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or fettered most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment.
Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today. Magna Carta influenced the development of the common law and many constitutional documents, such as the United States Constitution. Many clauses were renewed throughout the Middle Ages, and continued to be renewed as late as the 18th century. By the second half of the 19th century, however, most clauses in their original form had been repealed from English law.
Magna Carta was the first document forced onto an English King by his subjects in an attempt to limit his powers by law. It was preceded by the 1100 Charter of Liberties in which King Henry I voluntarily stated that his own powers were under the law.
(Notes on Magna Carta, see Appendix 3)
HUMAN RIGHT: UNITED NATIONS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHT (UDHR)
The major tragedy which occurs in some country such Tsunami in Indonesia, and Bangladesh and Cyclone Clag in India and Tropical Strom Custav in Louisiania and strong wind in South Africa had totally damaging human needs. Even political instability in some countries like Myanmar, Thailand and Indonesia and the experience of military dictatorship in some countries, have directed the world's attention to human rights. It is not means they did not care of but at the particular time they less capable to care off. The continuous war in Palestine and the damaging in Iraq, in particular, have brought human rights unto the global stage. The attempt of the Philippines Government to exterminate all the freedom fighters of Mindanao and to destroy millions of others creatures, Iraqis prisoners in Guantanamoa, and our government freely trigger on ‘sumpah laknat’ and our political actors had horrified the Malaysian peace. The wave of tragedies seem not going to stop, many nations from around the world came together to discuss seriously about human right. They rely on United Nations (UN) organization as an international attempt to help stabilize international relations and ensure world human right.
Long time ago, members of the United Nations pledged to promote and encourage respect for the inalienable human rights that belong to every man, woman and child. To advance this goal, the UN established a Commission on Human Rights and charged it with a task of drafting a document spelling out the meaning of the fundamental rights and freedoms proclaimed in the United Nations Charter. On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights to promote respect of a whole array of human rights ranging from civil and political rights to economic, social and cultural rights.
The Development of International Human Rights Norms
The development of international human rights norms has been one of the great success stories of the United Nations. Cumulatively, we now have a veritable international code of human rights governing practically every area of the relationship between the individual and the state, and the process of drafting new norms continues at the present time with a convention under preparation banning enforced and involuntary disappearances, one of the terrible forms of gross violations of human rights prevalent since the 1970s.
The development of human rights norms has been influenced by many factors. In the first place, concepts of human rights from different parts of the world were drawn upon in giving content to the Universal Declaration, including the historic English, French and American declarations of human rights. In the second place, there was a strong push for an approach to human rights that recognized the interrelationship among civil and political rights and economic, social and cultural rights. However, Western countries, mainly, argued that civil and political rights were interdictions upon Governments, whereas economic, social and cultural rights were programmatic aspirations to the realization of which a progressive approach should be taken.
This, basically, was the reason why the international community ended up eventually with two Covenants instead of one. Governments such as those of Great Britain, France, and the USA were reluctant to recognize equality rights during an era in which the first two had colonies still while the third had corrosive segregation in the South. The protection of minorities and indigenous populations was also a difficult topic to grapple with, especially as Latin American countries insisted that they did not have minority populations and were reluctant to recognize the rights of indigenous populations. It would take years to overcome some of these difficulties and this has been achieved only partially in some instances. To this day, for example, some Western countries deny the character of human rights to economic, social and cultural rights.
The developing countries such as like ASEAN, for their part, pressed hard for recognition of the right to self-determination and the right to development and to rule. These countries saw the development of human rights norms as having a role to play in consecrating as international public policy major aspirations of large parts of humanity for peace, self-determination, development, and justice. A tension between classical, restrictive approaches to human rights and more dynamic, public order approaches to human aspirations and rights continues to be felt in our time, particularly as regards the implementation of the right to development.
Whatever the difficulties, we are now the inheritors of great normative human rights instruments, with pride of place belonging to the Universal Declaration of Human Rights. Some scholars have argued that the Declaration is an elaboration upon the human rights provisions of the Charter and therefore deserves to be ranked alongside the United Nations Charter as one of the basic constitutional documents of the contemporary world order. Views differ as to whether the Universal Declaration, in part or as a whole, is a legally binding document but most commentators agree that some parts of it represent binding international law.
The Universal Declaration, the two International Covenants, the Convention against racial discrimination, the Convention against torture, the Convention on the rights of the child, the Convention on the elimination of discrimination against women, and the Convention on the rights of migrant workers and their families are the principal human rights treaties to date. The first six conventions are widely ratified, with the convention on the rights of the child being the one subscribed to by all but two states. The convention on the rights of migrant workers and their families is the least ratified of all because Western countries in particular have consistently objected to many of its provisions.
Principles of International Human Rights Law
General principles of law found in the major legal systems of the world are a source of international law that international courts and tribunals may invoke. General principles of law include, first; The Rule of law: Society shall be governed through laws and everyone is subject to the law. Second; Constitutionalism: governance that advances the rights of the people. Third; Democratic Governance: The will of the people shall be the basis of the authority of governments. The Principle of Responsibility for Unlawful Acts. In the latest our government decision to give ex-gratia to the judges which has been said the last decision principally against their right. It is the right action to take?
Principles of international public policy have been recognized in international law. The International Court of Justice has asserted the existence of obligations of a state towards the international community as a whole. "Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination." Ian Brownlie (2002) considers that the least controversial examples of principles of international public policy, are the prohibition of the use of force, the law of genocide, the principle of racial non-discrimination, crimes against humanity, and the rules prohibiting trade in slavers and piracy. International humanitarian law seeks to uphold the principle of humanity in armed conflicts. The principles pervading international humanitarian law are, as classically developed in the International Red Cross movement, the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality.
In the Nicaragua case (see Appendix 4) the International Court of Justice invoked general principles of humanitarian law based upon Article 3 common to the four Geneva Conventions on humanitarian law. Expounding on the general principles of humanitarian law, the Court held that the Geneva Conventions were in some respects a development and in other respects no more than the expression, of such principles. Common article 3 of the four Geneva conventions provides that in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum the following provisions; "Persons taking no part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth, or wealth, or any other similar criteria”. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
(b) Taking of hostages.
(c) Outrages upon personal dignity, in particular humiliating and degrading treatment.
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which recognized as indispensable by civilized peoples.
(e) The wounded and sick shall be collected and cared for.
Turning, specifically, to principles of international human rights law, we may identify the principles of universality, democratic legitimacy, justice, protection, legality, respect and ensure, equality and non-discrimination and remedy.
a. Universality.
The World Conference on Human Rights, held in 1993, succinctly expressed the consensus of the international community on the universality of human rights as follows: "The universality of these rights and freedoms is beyond question" It went on to say: "While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights."
b. Democratic Legitimacy.
Article 21, paragraph 3 of the Universal Declaration of Human Rights provides that the will of the people shall be the basis of the authority of government: this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 25 of the International Covenant on Civil and Political Rights states that Everyone shall have the rights and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his or her country.
The World Conference on Human Rights declared that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. It emphasized that "The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world."
c. Justice.
The principle of justice is at the heart of the human rights movement and has been taken forward with the establishment of institutions such as the International Criminal Court. In A.V.Australia, the Human Rights Committee recalled that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice.
d. Protection.
The International Commission on Intervention and State Sovereignty, in a widely acclaimed report issued in 2001, elaborated on the core principles of the responsibility to protect. This responsibility, according to the Commission, embraces three specific duties:
i. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
ii. The responsibility to react: to respond to situations of compelling human need with appropriate measures which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
iii. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
e. Legality.
In General Comment No. 27, the Human Rights Committee provides general principles applicable in the interpretation of restrictions or limitation clauses in human rights treaties. Where, for example, one finds the expression 'as provided by law', the law itself has to establish the conditions under which the rights may be limited. Further, the restriction must not impair the essence of the right, should use precise criteria and may not confer unfettered discretion on those charged with their execution.
In the same vein, a restriction must be legitimate and necessary. 'Restrictive measures must conform to the principle of proportionality, they must be appropriate to achieve their protective function, they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.' The Committee puts particular emphasis on the fundamental principles of equality and non-discrimination whenever restrictions are made.
f. Equality and Non-Discrimination.
The principle of equality and non-discrimination is a hallowed principle of international human rights law. In its General Comment No. 18, the Human Rights Committee provided the following definition of the term discrimination; "The Committee believes that the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms."
g. Respect and Ensure.
In today's world of pervasive terrorist threats, the Human Rights Committee has provided invaluable guidance on the balance to be struck between security and human rights. Referring to Article 4 of the International Covenant on Civil and Political Rights, the Committee declared in General Comment No. 29; "Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State's emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances."
h. Remedy.
Article 8 of the Universal Declaration of Human Rights states the fundamental principle that "Everyone has the right to an effective remedy by the competent national tribunal…" The World Conference on Human Rights (1993) emphasized that "Every State should provide an effective framework of remedies to redress human rights grievances or violations. In its views under the Optional Protocol the Human Rights Committee has consistently retained its position that in a case where a violation of the Covenant has been established through the Optional Protocol procedure, the State Party in Question has a legal obligation to provide an effective remedy.
Having recapitulated key principles of international human rights law, we may now turn to a discussion of the third part of the International Bill of Human Rights as envisioned by the Commission on Human Rights, namely, measures of implementation.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948. It is founded upon four pillars - the freedom from fear and want and the freedom of speech and belief. It lists the whole array of human rights that ranges from civil and political rights to economic, social and cultural rights. The civil and political rights enshrined in the UDHR include:
a. Article 5 - Freedom from torture or cruel, inhuman or degrading treatment or punishment.
b. Article 9 - Freedom from arbitrary arrest, detention or exile.
c. Article 13 - Freedom of movement.
d. Article 20 - Right to freedom of peaceful assembly and association.
e. Article 21 - Right to take part in the government of one's country, directly or through freely chosen representatives.
The economic, social and cultural rights enshrined in the UDHR include:
a. Article 16 - Right to a family life.
b. Article 23 - Right to just and favorable conditions of work.
c. Article 25 - Right to a standard of living adequate for health and well-being, including food, clothing, housing and medical care.
d. Article 26 - Right to education.
e. Article 27 - Right to freely participate in the cultural life of the community, to enjoy arts and to share in scientific advancement and its benefits.
HUMAN RIGHTS IN RELIGION
Human rights are really an expression of tolerance in religions that is the basis of peace and progress. Religions at large, addresses questions of people's duties, rights and responsibilities. It teaches us to love and respect each other and to uphold the dignity of others, which is the basis of human rights. Quran and sunnah had stated about human rights is more earlier than others above. When we speak of human rights in Islam we really mean that these rights have been granted by God; they have not been granted by any king or by any legislative assembly. The rights granted by the kings or the legislative assemblies, can also be withdrawn in the same manner in which they are conferred.
The same is the case with the rights accepted and recognized by the dictators. They can confer them when they please and withdraw them when they wish; and they can openly violate them when they like. But since in Islam human rights have been conferred by God, no legislative assembly in the world, or any government on earth has the right or authority to make any amendment or change in the rights conferred by God. No one has the right to abrogate them or withdraw them. Nor are they the basic human rights which are conferred on paper for the sake of show and exhibition and denied in actual life when the show is over. Nor are they like philosophical concepts which have no sanctions behind them.
The charter and the proclamations and the resolutions of the United Nations cannot be compared with the rights sanctioned by God; because the former is not applicable to anybody while the latter is applicable to every believer. They are a part and parcel of the Islamic Faith. Every Muslim or administrators, who claim them selves to be Muslims will have to accept, recognize and enforce them. If they fail to enforce them, and start denying the rights that have been guaranteed by God or make amendments and changes in them, or practically violate them while paying lip-service to them, the verdict of the Holy Quran for such governments is clear and unequivocal. Firman Allah S.W.T in Juzuk 5, versus 44, it means “those who do not judge by what God has sent down are the dis Believers (kafirun). The following verse (45) also proclaims: "They are the wrong-doers (zalimun)", while a third verse (47) in the same juzuk says: "They are the evil-livers (fasiqun)".
In other words this means that if the temporal authorities regard their own words and decisions to be right and those given by God as wrong they are disbelievers. If on the other hand they regard God's commands as right but wittingly reject them and enforce their own decisions against God's, then they are the mischief-makers and the wrong-doers. Fasiq, the law-breaker is the one who disregards the bond of allegiance, and zalim is he who works against the truth. Thus all those temporal authorities who claim to be Muslims and yet violate the rights sanctioned by God belong to one of these two categories, either they are the disbelievers or are the wrong- doers and mischief-makers. The rights which have been sanctioned by God are permanent, perpetual and eternal. They are not subject to any alterations or modifications, and there is no scope for any change or abrogation
ISLAM: HUMAN RIGHTS AT WAR
As a military personal, we abide to some rules of human right during war either locally or internationally. From the officer’s cadet till senior general, we had been inform and thought about ‘dos and don’ts at war’. ‘Do’s and don’ts at war are human rights aspect which everybody involved in war are entitled for, even the enemies. It become worldwide or internationally understands by the military personal. To make sure the human rights at war are respected, the United Nation form a Geneva Convention related to war which must be respect by anybody. Every military personal think they are just a tools for the government to accomplish their mission. Therefore the military had a special rule toward human right even to their enemies.
However, the most ideal philosophy toward enemy is stated in Quran and sunnah. In the days when Islam came into focus the world was completely unaware of the concept of humane and decent rules of war. The West became conscious of this concept for the first time through the works of the seventeenth century thinker, Grotius (Tuck, 1999). But the actual codification of the 'international law' in war began in the middle of the nineteenth century. Prior to this no concept of civilized behavior in war was found in the West. All forms of barbarity and savagery were perpetrated in war, and the rights of those at war were not even recognized, let alone respected. The laws which were framed in this field during the nineteenth century or over the following period up to the present day cannot be called 'laws' in the real sense of the word. They are only in the nature of conventions and agreements and calling them 'international law' is actually a kind of misnomer, because no nation regards them binding when they are at war, unless, of course, when the adversaries...
[To continue reading, please choose your order.
Purchasing Format
1. All prices are in Malaysia Ringgit, and do not include shipping and handling. Please choose your purchasing method.
a. Softcopy (send to your email)= RM 150.00
b. Hardcopy with soft cover send to your address)= RM 170.00
[RM 160.00 + RM 10.00 (shipping)]
c. Hardcopy with hardcover send to your address)= RM 200.00
[RM 170.00 + RM 30.00 (shipping)]
2. Please pay to Account Number: 1402-0184306528 (CIMB - Mohd Radzi bin Abd Hamid).
3. After completed the payment, please describe your order by written down the;
a. Title of the article:
b. Purchasing Method (A or B or C):
c. E-mail or address:
d. Date of payment:
e. Payment reference number:
and email to email: radzi_hamid@yahoo.com
Note:
a. Copyright in each Articles, Dissertation and Theses is retained by the author. All right reserved.
b. Please note that because I custom print copies when receiving orders, articles, dissertation and theses can only be returned in the unlikely event of a production defect.
c. The order will sent to the address or email after received the payment.
(By: Mohd Radzi bin Abdul Hamid)
‘Human rights are the foundation of human existence and coexistence. Human rights are universal, indivisible and interdependent. Human rights are what make us human. They are the principles by which we create the sacred home for human dignity’
Kofi Annan
INTRODUCTION
On 31 August 2008, Malaysian celebrated the 51st Independence Day. We come from a long way as a federal constitutional monarchy with a population of approximately 26.6 million with multi-ethnic. Malaysian practiced parliamentary system of government headed by a prime minister selected through periodic multiparty elections. The National Front, a coalition of political parties dominated by the United Malays National Organization (UMNO), has held power since 1957 (hopefully will not end at 16 Sep 2008). The most recent national elections were conducted in a generally transparent manner so call, but the opposition complained of the ruling coalition's exploitation of the powers of incumbency. Even in last Permatang Pauh election, we had observe the government politician has misused the government properties such as executive jet, manipulate the media, government agencies etc. At the same time they blamed the opposition with cruel actions against theirs supporters. What ever happened, the government still maintained effectively control of the security forces in order to maintain peace and harmony. Is it to maintain the peace and harmony, any government has to do that? Why peace and harmony so important?
After 51 years of independence and we live in peace and harmony, the government able to take care and generally respected the human rights of its citizens; however, there were problems in some areas. The government had been accused to abuse human right in some areas such as did not conduct a transparent and sincere investigation towards deaths that occurred during apprehension by police or while in police custody. Other problems included police abuse of detainees, overcrowded prisons, statutes to arrest and detain persons without charge or trial, and persistent questions about the impartiality and independence of the judiciary. The government continued to restrict freedom of press by saying the media is free and independence, association, and assembly and placed some restrictions on freedom of speech, including prohibitions of organized public discussions about "sensitive" topics. Violence against women remained a problem. The country was a destination and transit point for trafficking in women and girls for the purposes of prostitution and domestic servitude. Latest case is blindly charge sodomy cases on Anwar Ibrahim without consider the right that he or his family has.
This paper will discuss about issues and problems of human right in Malaysia, mainly. A few important aspects will be discuss accordingly such as the definition of human rights, the history of human right, human right in religion, and United Nation and human right. As a military personal, not to forget the human right at war. The discussion on human rights in Malaysia will cover rules and laws, issues and problems, human right commission (SUHAKAM), case study (Meor Atiqulrahman and Coporal M.Moorthy) and the issues of total human right in Malaysia.
HUMAN RIGHT DEFINITION
Traditional Understanding
Traditionally understand, human rights are the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which are often thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. According to Richard and Burn (2006), human rights begin with ‘the devine right of kings’ in those episodes of Rom, Babylon and Athens. Because the kings is so powerful and have the total right, they are wrongly use their right. Than, the traditional understanding toward human right as Devine right of kings change to “… a bill of right is what the people are entitled to against every government on earth…”. With this understanding; people or ‘rakyat’ start to fight against the king. It comes the era of church vs king.
The core for traditional definition is ‘human basic needs’ such as foods, lands, beauty women, place to stay peacefully, and it’s day-to-day life. The traditional definition still valid and applicable until now, but with the rapid change and fast growth especially in life style, different requirements, different sentiments etc; the definition should be more vide and objective. This is the main reasons for ‘rakyat’ to stand-up and against the king. In some countries such India, Indonesia, and Nepal (recently), they managed to thrown their king.
Modern Understanding
In 20th century, everything has changed from traditional way to something new which more than modernization. So globalize. It is also changed the definition of human right because of the advance of society. The definition of human rights from the perspective of narrow or so traditional way, political self-interest has rendered the phrase virtually meaningless. Everything from the right of capitalists to freely exploit labor or ‘rakyat’ to the right of terrorists to plant bombs, commit murder are defended under the banner of human rights and questioning the ‘peribumi’ rights. These definitions of human rights are of no value to the billions of people around the world striving for a society fit for human existence (McIntyre, Richard and Ramstad, 2002).
A modern definition of human rights must be based on what is required by all human beings to exist. And a country did not stand alone. In other words, when we talk about human rights, we are talking about those rights which flow from the simple fact that a human being exists and from no other considerations. Human right is not only to entertain palace requirements but also looks for ‘rakyat’ needs. It also involved our neighbors and even our neighboring country.
In modern living, the categories of rights exist in a complex, modern society, such as the rights of women, children, workers and minorities. These categories of rights belong to individuals as a result of their membership in a collective within society. Ignatieff and Michael, (2001), stated that the issue of minority rights can be dealt with in a modern and comprehensive way only if every individual's rights are guaranteed by virtue of their being human. If society were to be based on such a fundamental law, with mechanisms to ensure it in practice, the issue of minority rights would also effectively be solved. No longer would minorities and collectives in the society be treated as "special interest groups and thus marginalized, with their needs turned into mere policy objectives for this or that political party, or left to the whim of bureaucrats or whichever party happens to form a government. But in our country, the minorities is immigrant such as Indian and Chinese. Either you agreed or disagreed, they are still holding the immigrant title because of their origin regardless where they born. To avoid fell uncomfortable by calling ‘immigrant’, the government had created term of ‘non-bumiputra’ even for third generations they had born here, Malaysia. Even that, the government still catered for their rights. To be more specific, modern definitions had divided human right to two categories is entitlement rights and personal rights.
a. Entitlement right
Entitlement rights are those rights which society must provide every human being so that they can exist in a modern society. Entitlement rights, such as the right to a livelihood and to a socially acceptable level of food, clothing and shelter are rights which, though recognized by the United Nations Universal Declaration of Human Rights. The right to an education, to health care and to economic, social and personal security is also basic rights of entitlement to which every individual has claim.
b. Personal right
Personal rights are those rights concerning control by an individual of their own person. Whereas entitlement rights are demands on society to which every individual has claim, personal rights concern prohibitions against the violation of the individual, of their mind and body, by society. Of these, the right to conscience is the most fundamental, for without the right to think and express opinions, how can an individual be considered fully human? The right to privacy and the right of an individual to sovereignty over their own body are also fundamental human rights.
In our country, it is clear that our government has given a sufficient respect to human rights in terms of the demands of individuals on society. The right to a livelihood, an education, adequate health care and all other such entitlements are reduced to mere policy objectives which are subordinated to the demands of the financiers for maximum returns on their investments. However there have a few cases which shown we do not have total personal right such as case of Meor Atiqulrahman, Hajjah Halimatunsaadiah and Corporal M.Moorthy (claimed by the family).
HISTORY OF HUMAN RIGHT
Anything else in this world is claim civilized by the west even human right. The people in the West have the habit of attributing every good thing to them selves and try to prove that it is because of them that the world got this blessing; otherwise the world was steeped in ignorance and completely unaware of all these benefits. Now let us look at the question of human rights. It is very loudly and vociferously claimed that the world got the concept of basic human rights from the Magna Carta of Britain. Although the Magna Carta itself came into existence six hundred years after the advent of Islam. But the truth of the matter and the magic is that until the seventeenth century no one even knew that the Magna Carta contained the principles of Trial by Jury, Habeas Corpus, and the Control of Parliament on the Right of Taxation (James, C.H, 1992). If the people who had drafted the Magna Carta were living today they would have been greatly surprised if they were told that their document also contained all these ideals and principles. They had no such intention, nor were they conscious of all these concepts which are now being attributed to them. In fact the Westerners had no concept of human rights and civic rights before the seventeenth century because of the ‘devine right of kings’.
Periodically, westerner’s human right is not the first one. In fact, before the Babylonian era (1750 B.C.E), the prophet of Adam and Hawa has civilianized the world. Allah S.W.T stated in ‘Surah Al-Maidah, 27-31; “And the story of the two sons of Adam (Habil and Qabil) in truth; when each offered a sacrifice (to Allah), it was accepted from the one but not from the other. The latter said to the former: "I will surely kill you." The former said: "Verily, Allah accepts only from those who are Al-Muttaqun (the pious)." "If you do stretch your hand against me to kill me, I shall never stretch my hand against you to kill you: for I fear Allah, the Lord of the `Alamin (mankind, jinn, and all that exists)." "Verily, I intend to let you draw my sin on yourself as well as yours, then you will be one of the dwellers of the Fire; and that is the recompense of the Zalimin (polytheists and wrong-doers);" So the Nafs (self) of the other (latter one) encouraged him and made fair-seeming to him the murder of his brother; he murdered him and became one of the losers; Then Allah sent a crow who scratched the ground to show him to hide the dead body of his brother; He (the murderer) said: "Woe to me! Am I not even able to be as this crow and to hide the dead body of my brother?" Then he became one of those who regretted”
Hawa gave two twin birth of Qabil and Iqlima and Habil and Lubuda. Later, Allah asks Prophet of Adam to married them. As a father, Adam have a right to decide; he decided that Qabil will marry Lubuda and Habil will marry Iqlima. At the earliest of human era, Qabil had ask his rights, he refused to married Lubuda. He stated, he has the right to married his sister because Iqlima was better and more beautiful than Lubuda. The Prophet of Adam did not agree with the Qabil request but Adam still considers the rights of his son. Prophet of Adam asks both of them to offer a sacrifice to Allah as a ‘korban. Whose sacrifice or ‘korban; are accepted, then he got the rights to choose to married whom. Both of them agreed on those terms. Qabil as a farmer offered a bundle of bad plants seed and Qabil as shepherd offered a fat goat that he has. After Allah granted the goat, Habil make his decision to married his sister, Iqlima. Even though at the beginning, they agree to term but Qabil still did not satisfied. Later, he killed Habil by throwing a stone at his brother head. After murder his brother, Qabil become confusing and did know what to do with his brother dead body while the group of cannibal birds flying around waiting to eat the dead body.
Allah S.W.T had created a scene how a crow buried other dead crow by digging a hole. By looking to those events, Qabil learn how to manage his brother dead body. From their generations, the world community grows and grows and the human rights aspect also developed accordingly. In this story, we can learn a lot of human rights even at the earliest stages of human civilization. First the rights of the leader or father (Adam), the rights of son or person (Qabil), the right of everybody (Qabil and Habil) and even the rights of human dead body.
But the according history record (periodically) the human civilized as follows:
a. 1750 B.C.E : Code of Hammurabi, Babylonia
b. 1200 - 300 B.C.E : Old Testament
c. 551 - 479 B.C.E : Analects of Confucius
d. 40 - 100 C.E : New Testament
e. 644 - 656 C.E : Koran
f. 1215 : Magna Carta, England
g. 1400 : Code of Nezahualcoyotl,
h. 1648 : Treaty of Westphalia, Europe
i. 1689 : English Bill of Rights, England
j. 1776 : Declaration of Independence, United States
k. 1787 : United States Constitution
l. 1789
: French Declaration on the Rights of Man and the Citizen, France 1791 -United States Bill of Rights
The Magna Carta itself is not so absolute or the first because there have a few rules and procedures had been practices before that such as eras of Adam and Hawa (as per explain earlier), the Code of Hammurabbi was created ca. 1760 BC and the Right of Athenian during the Athen period.
a. Code of Hammurabbi
The Code of Hammurabi, the best preserved ancient law code, was created ca. 1760 BC (middle chronology) in ancient Babylon. It was enacted by the sixth Babylonian king, Hammurabi. Earlier collections of laws include the codex of Ur-Nammu, king of Ur (ca. 2050 BC), the Codex of Eshnunna (ca. 1930 BC) and the codex of Lipit-Ishtar of Isin (ca. 1870 BC). At the top of the basalt stele is a bas-relief image of a Babylonian god (either Marduk or Shamash), with the king of Babylon presenting himself to the god, with his right hand raised to his mouth as a mark of respect.
The text covers the bottom portion with the laws written in cuneiform script. It contains a list of crimes and their various punishments, as well as settlements for common disputes and guidelines for citizens' conduct. The Code does not provide for an opportunity for explanation or justification, though it does imply one's right to present evidence. The stele was displayed for all to see; thus, no man could plead ignorance of the law as an excuse. However, in that era few people except scribes could read. For a summary of the laws, see Babylonian law.
Hammurabi (ruled ca. 1796 BC – 1750 BC) believed that he was chosen by the gods to deliver the law to his people. In the preface to the law code, he states, "Anu and Bel called by name me, Hammurabi, the exalted prince, who feared God, to bring about the rule of righteousness in the land.". The laws are numbered from 1 to 282 (numbers 13 and 66-99 are missing) and are inscribed in Old Babylonian cuneiform script on the eight-foot tall stele. It was discovered in December 1901 in Susa, Elam, which is now Khuzestan, Iran, where it had been taken as plunder by the Elamite king Shutruk-Nahhunte in the 12th century BC. It is currently on display at the Louvre Museum in Paris.
The code is often pointed to as the first example of the legal concept that some laws are so basic as to be beyond the ability of even a king to change. Hammurabi had the laws inscribed in stone, so they were immutable. The Code of Hammurabi was one of several sets of laws in the Ancient Near East. Most of these codes come from similar cultures and racial groups in a relatively small geographical area, and they have passages which resemble each other. The earlier Code of Ur-Nammu (21st century BC), the Hittite laws (ca. 1300 BC), and Mosaic Law (traditionally ca. 1400 BC under Moses), all contain statutes that bear at least passing resemblance to those in the Code of Hammurabi and other codices from the same geographic area.
(Notes on Codes of Hammurabbi, see Appendix 1)
b. Right of Athenian
Athenian democracy developed in the Greek city-state of Athens, comprising the central city-state of Athens and the surrounding territory of Attica, around 500 BC. Athens was one of the very first known democracies. Other Greek cities set up democracies, most but not all following an Athenian model, but none were as powerful or as stable (or as well-documented) as that of Athens. It remains a unique and intriguing experiment in direct democracy where the people do not elect representatives to vote on their behalf but vote on legislation and executive bills in their own right. Participation was by no means open to all inhabitants of Attica, but the in-group of participants was constituted with no reference to economic class and they participated on a scale that was truly phenomenal. The public opinion of voters was remarkably influenced by the political satire performed by the comic poets at the theaters (JACT and JACTGC, 1984).
Solon (594 BC), Calisthenics (509 BC), and Ephialtes of Athens (462 BC) all contributed to the development of Athenian democracy. Historians differ on which of them was responsible for which institutions, and which of them most represented a truly democratic movement. It is most usual to date Athenian democracy from Cleisthenes, since Solon's constitution fell and was replaced by the tyranny of Peisistratus, whereas Ephialtes revised Cleisthenes' constitution relatively peacefully. Hipparchus, the brother of the tyrant Hippias, was killed by Harmodius and Aristogeiton, who were subsequently honored by the Athenians for their alleged restoration of Athenian freedom.
(Notes on Right of Athenian, see Appendix 2)
Magna Carta
Magna Carta (Latin for Great Charter, literally "Great Paper"), also called Magna Carta Libertatum (Great Charter of Freedoms), is an English charter originally issued in 1215. It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law. It explicitly protected certain rights of the King's subjects, whether free or fettered most notably the writ of habeas corpus, allowing appeal against unlawful imprisonment.
Magna Carta was the most significant early influence on the extensive historical process that led to the rule of constitutional law today. Magna Carta influenced the development of the common law and many constitutional documents, such as the United States Constitution. Many clauses were renewed throughout the Middle Ages, and continued to be renewed as late as the 18th century. By the second half of the 19th century, however, most clauses in their original form had been repealed from English law.
Magna Carta was the first document forced onto an English King by his subjects in an attempt to limit his powers by law. It was preceded by the 1100 Charter of Liberties in which King Henry I voluntarily stated that his own powers were under the law.
(Notes on Magna Carta, see Appendix 3)
HUMAN RIGHT: UNITED NATIONS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHT (UDHR)
The major tragedy which occurs in some country such Tsunami in Indonesia, and Bangladesh and Cyclone Clag in India and Tropical Strom Custav in Louisiania and strong wind in South Africa had totally damaging human needs. Even political instability in some countries like Myanmar, Thailand and Indonesia and the experience of military dictatorship in some countries, have directed the world's attention to human rights. It is not means they did not care of but at the particular time they less capable to care off. The continuous war in Palestine and the damaging in Iraq, in particular, have brought human rights unto the global stage. The attempt of the Philippines Government to exterminate all the freedom fighters of Mindanao and to destroy millions of others creatures, Iraqis prisoners in Guantanamoa, and our government freely trigger on ‘sumpah laknat’ and our political actors had horrified the Malaysian peace. The wave of tragedies seem not going to stop, many nations from around the world came together to discuss seriously about human right. They rely on United Nations (UN) organization as an international attempt to help stabilize international relations and ensure world human right.
Long time ago, members of the United Nations pledged to promote and encourage respect for the inalienable human rights that belong to every man, woman and child. To advance this goal, the UN established a Commission on Human Rights and charged it with a task of drafting a document spelling out the meaning of the fundamental rights and freedoms proclaimed in the United Nations Charter. On 10 December 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights to promote respect of a whole array of human rights ranging from civil and political rights to economic, social and cultural rights.
The Development of International Human Rights Norms
The development of international human rights norms has been one of the great success stories of the United Nations. Cumulatively, we now have a veritable international code of human rights governing practically every area of the relationship between the individual and the state, and the process of drafting new norms continues at the present time with a convention under preparation banning enforced and involuntary disappearances, one of the terrible forms of gross violations of human rights prevalent since the 1970s.
The development of human rights norms has been influenced by many factors. In the first place, concepts of human rights from different parts of the world were drawn upon in giving content to the Universal Declaration, including the historic English, French and American declarations of human rights. In the second place, there was a strong push for an approach to human rights that recognized the interrelationship among civil and political rights and economic, social and cultural rights. However, Western countries, mainly, argued that civil and political rights were interdictions upon Governments, whereas economic, social and cultural rights were programmatic aspirations to the realization of which a progressive approach should be taken.
This, basically, was the reason why the international community ended up eventually with two Covenants instead of one. Governments such as those of Great Britain, France, and the USA were reluctant to recognize equality rights during an era in which the first two had colonies still while the third had corrosive segregation in the South. The protection of minorities and indigenous populations was also a difficult topic to grapple with, especially as Latin American countries insisted that they did not have minority populations and were reluctant to recognize the rights of indigenous populations. It would take years to overcome some of these difficulties and this has been achieved only partially in some instances. To this day, for example, some Western countries deny the character of human rights to economic, social and cultural rights.
The developing countries such as like ASEAN, for their part, pressed hard for recognition of the right to self-determination and the right to development and to rule. These countries saw the development of human rights norms as having a role to play in consecrating as international public policy major aspirations of large parts of humanity for peace, self-determination, development, and justice. A tension between classical, restrictive approaches to human rights and more dynamic, public order approaches to human aspirations and rights continues to be felt in our time, particularly as regards the implementation of the right to development.
Whatever the difficulties, we are now the inheritors of great normative human rights instruments, with pride of place belonging to the Universal Declaration of Human Rights. Some scholars have argued that the Declaration is an elaboration upon the human rights provisions of the Charter and therefore deserves to be ranked alongside the United Nations Charter as one of the basic constitutional documents of the contemporary world order. Views differ as to whether the Universal Declaration, in part or as a whole, is a legally binding document but most commentators agree that some parts of it represent binding international law.
The Universal Declaration, the two International Covenants, the Convention against racial discrimination, the Convention against torture, the Convention on the rights of the child, the Convention on the elimination of discrimination against women, and the Convention on the rights of migrant workers and their families are the principal human rights treaties to date. The first six conventions are widely ratified, with the convention on the rights of the child being the one subscribed to by all but two states. The convention on the rights of migrant workers and their families is the least ratified of all because Western countries in particular have consistently objected to many of its provisions.
Principles of International Human Rights Law
General principles of law found in the major legal systems of the world are a source of international law that international courts and tribunals may invoke. General principles of law include, first; The Rule of law: Society shall be governed through laws and everyone is subject to the law. Second; Constitutionalism: governance that advances the rights of the people. Third; Democratic Governance: The will of the people shall be the basis of the authority of governments. The Principle of Responsibility for Unlawful Acts. In the latest our government decision to give ex-gratia to the judges which has been said the last decision principally against their right. It is the right action to take?
Principles of international public policy have been recognized in international law. The International Court of Justice has asserted the existence of obligations of a state towards the international community as a whole. "Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination." Ian Brownlie (2002) considers that the least controversial examples of principles of international public policy, are the prohibition of the use of force, the law of genocide, the principle of racial non-discrimination, crimes against humanity, and the rules prohibiting trade in slavers and piracy. International humanitarian law seeks to uphold the principle of humanity in armed conflicts. The principles pervading international humanitarian law are, as classically developed in the International Red Cross movement, the principles of humanity, impartiality, neutrality, independence, voluntary service, unity, and universality.
In the Nicaragua case (see Appendix 4) the International Court of Justice invoked general principles of humanitarian law based upon Article 3 common to the four Geneva Conventions on humanitarian law. Expounding on the general principles of humanitarian law, the Court held that the Geneva Conventions were in some respects a development and in other respects no more than the expression, of such principles. Common article 3 of the four Geneva conventions provides that in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum the following provisions; "Persons taking no part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth, or wealth, or any other similar criteria”. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
(b) Taking of hostages.
(c) Outrages upon personal dignity, in particular humiliating and degrading treatment.
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which recognized as indispensable by civilized peoples.
(e) The wounded and sick shall be collected and cared for.
Turning, specifically, to principles of international human rights law, we may identify the principles of universality, democratic legitimacy, justice, protection, legality, respect and ensure, equality and non-discrimination and remedy.
a. Universality.
The World Conference on Human Rights, held in 1993, succinctly expressed the consensus of the international community on the universality of human rights as follows: "The universality of these rights and freedoms is beyond question" It went on to say: "While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights."
b. Democratic Legitimacy.
Article 21, paragraph 3 of the Universal Declaration of Human Rights provides that the will of the people shall be the basis of the authority of government: this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 25 of the International Covenant on Civil and Political Rights states that Everyone shall have the rights and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) to have access, on general terms of equality, to public service in his or her country.
The World Conference on Human Rights declared that democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. It emphasized that "The international community should support the strengthening and promoting of democracy, development and respect for human rights and fundamental freedoms in the entire world."
c. Justice.
The principle of justice is at the heart of the human rights movement and has been taken forward with the establishment of institutions such as the International Criminal Court. In A.V.Australia, the Human Rights Committee recalled that the notion of 'arbitrariness' must not be equated with 'against the law' but be interpreted more broadly to include such elements as inappropriateness and injustice.
d. Protection.
The International Commission on Intervention and State Sovereignty, in a widely acclaimed report issued in 2001, elaborated on the core principles of the responsibility to protect. This responsibility, according to the Commission, embraces three specific duties:
i. The responsibility to prevent: to address both the root causes and direct causes of internal conflict and other man-made crises putting populations at risk.
ii. The responsibility to react: to respond to situations of compelling human need with appropriate measures which may include coercive measures like sanctions and international prosecution, and in extreme cases military intervention.
iii. The responsibility to rebuild: to provide, particularly after a military intervention, full assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the intervention was designed to halt or avert.
e. Legality.
In General Comment No. 27, the Human Rights Committee provides general principles applicable in the interpretation of restrictions or limitation clauses in human rights treaties. Where, for example, one finds the expression 'as provided by law', the law itself has to establish the conditions under which the rights may be limited. Further, the restriction must not impair the essence of the right, should use precise criteria and may not confer unfettered discretion on those charged with their execution.
In the same vein, a restriction must be legitimate and necessary. 'Restrictive measures must conform to the principle of proportionality, they must be appropriate to achieve their protective function, they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.' The Committee puts particular emphasis on the fundamental principles of equality and non-discrimination whenever restrictions are made.
f. Equality and Non-Discrimination.
The principle of equality and non-discrimination is a hallowed principle of international human rights law. In its General Comment No. 18, the Human Rights Committee provided the following definition of the term discrimination; "The Committee believes that the term 'discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms."
g. Respect and Ensure.
In today's world of pervasive terrorist threats, the Human Rights Committee has provided invaluable guidance on the balance to be struck between security and human rights. Referring to Article 4 of the International Covenant on Civil and Political Rights, the Committee declared in General Comment No. 29; "Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State's emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances."
h. Remedy.
Article 8 of the Universal Declaration of Human Rights states the fundamental principle that "Everyone has the right to an effective remedy by the competent national tribunal…" The World Conference on Human Rights (1993) emphasized that "Every State should provide an effective framework of remedies to redress human rights grievances or violations. In its views under the Optional Protocol the Human Rights Committee has consistently retained its position that in a case where a violation of the Covenant has been established through the Optional Protocol procedure, the State Party in Question has a legal obligation to provide an effective remedy.
Having recapitulated key principles of international human rights law, we may now turn to a discussion of the third part of the International Bill of Human Rights as envisioned by the Commission on Human Rights, namely, measures of implementation.
The Universal Declaration of Human Rights
The Universal Declaration of Human Rights (UDHR) was adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948. It is founded upon four pillars - the freedom from fear and want and the freedom of speech and belief. It lists the whole array of human rights that ranges from civil and political rights to economic, social and cultural rights. The civil and political rights enshrined in the UDHR include:
a. Article 5 - Freedom from torture or cruel, inhuman or degrading treatment or punishment.
b. Article 9 - Freedom from arbitrary arrest, detention or exile.
c. Article 13 - Freedom of movement.
d. Article 20 - Right to freedom of peaceful assembly and association.
e. Article 21 - Right to take part in the government of one's country, directly or through freely chosen representatives.
The economic, social and cultural rights enshrined in the UDHR include:
a. Article 16 - Right to a family life.
b. Article 23 - Right to just and favorable conditions of work.
c. Article 25 - Right to a standard of living adequate for health and well-being, including food, clothing, housing and medical care.
d. Article 26 - Right to education.
e. Article 27 - Right to freely participate in the cultural life of the community, to enjoy arts and to share in scientific advancement and its benefits.
HUMAN RIGHTS IN RELIGION
Human rights are really an expression of tolerance in religions that is the basis of peace and progress. Religions at large, addresses questions of people's duties, rights and responsibilities. It teaches us to love and respect each other and to uphold the dignity of others, which is the basis of human rights. Quran and sunnah had stated about human rights is more earlier than others above. When we speak of human rights in Islam we really mean that these rights have been granted by God; they have not been granted by any king or by any legislative assembly. The rights granted by the kings or the legislative assemblies, can also be withdrawn in the same manner in which they are conferred.
The same is the case with the rights accepted and recognized by the dictators. They can confer them when they please and withdraw them when they wish; and they can openly violate them when they like. But since in Islam human rights have been conferred by God, no legislative assembly in the world, or any government on earth has the right or authority to make any amendment or change in the rights conferred by God. No one has the right to abrogate them or withdraw them. Nor are they the basic human rights which are conferred on paper for the sake of show and exhibition and denied in actual life when the show is over. Nor are they like philosophical concepts which have no sanctions behind them.
The charter and the proclamations and the resolutions of the United Nations cannot be compared with the rights sanctioned by God; because the former is not applicable to anybody while the latter is applicable to every believer. They are a part and parcel of the Islamic Faith. Every Muslim or administrators, who claim them selves to be Muslims will have to accept, recognize and enforce them. If they fail to enforce them, and start denying the rights that have been guaranteed by God or make amendments and changes in them, or practically violate them while paying lip-service to them, the verdict of the Holy Quran for such governments is clear and unequivocal. Firman Allah S.W.T in Juzuk 5, versus 44, it means “those who do not judge by what God has sent down are the dis Believers (kafirun). The following verse (45) also proclaims: "They are the wrong-doers (zalimun)", while a third verse (47) in the same juzuk says: "They are the evil-livers (fasiqun)".
In other words this means that if the temporal authorities regard their own words and decisions to be right and those given by God as wrong they are disbelievers. If on the other hand they regard God's commands as right but wittingly reject them and enforce their own decisions against God's, then they are the mischief-makers and the wrong-doers. Fasiq, the law-breaker is the one who disregards the bond of allegiance, and zalim is he who works against the truth. Thus all those temporal authorities who claim to be Muslims and yet violate the rights sanctioned by God belong to one of these two categories, either they are the disbelievers or are the wrong- doers and mischief-makers. The rights which have been sanctioned by God are permanent, perpetual and eternal. They are not subject to any alterations or modifications, and there is no scope for any change or abrogation
ISLAM: HUMAN RIGHTS AT WAR
As a military personal, we abide to some rules of human right during war either locally or internationally. From the officer’s cadet till senior general, we had been inform and thought about ‘dos and don’ts at war’. ‘Do’s and don’ts at war are human rights aspect which everybody involved in war are entitled for, even the enemies. It become worldwide or internationally understands by the military personal. To make sure the human rights at war are respected, the United Nation form a Geneva Convention related to war which must be respect by anybody. Every military personal think they are just a tools for the government to accomplish their mission. Therefore the military had a special rule toward human right even to their enemies.
However, the most ideal philosophy toward enemy is stated in Quran and sunnah. In the days when Islam came into focus the world was completely unaware of the concept of humane and decent rules of war. The West became conscious of this concept for the first time through the works of the seventeenth century thinker, Grotius (Tuck, 1999). But the actual codification of the 'international law' in war began in the middle of the nineteenth century. Prior to this no concept of civilized behavior in war was found in the West. All forms of barbarity and savagery were perpetrated in war, and the rights of those at war were not even recognized, let alone respected. The laws which were framed in this field during the nineteenth century or over the following period up to the present day cannot be called 'laws' in the real sense of the word. They are only in the nature of conventions and agreements and calling them 'international law' is actually a kind of misnomer, because no nation regards them binding when they are at war, unless, of course, when the adversaries...
[To continue reading, please choose your order.
Purchasing Format
1. All prices are in Malaysia Ringgit, and do not include shipping and handling. Please choose your purchasing method.
a. Softcopy (send to your email)= RM 150.00
b. Hardcopy with soft cover send to your address)= RM 170.00
[RM 160.00 + RM 10.00 (shipping)]
c. Hardcopy with hardcover send to your address)= RM 200.00
[RM 170.00 + RM 30.00 (shipping)]
2. Please pay to Account Number: 1402-0184306528 (CIMB - Mohd Radzi bin Abd Hamid).
3. After completed the payment, please describe your order by written down the;
a. Title of the article:
b. Purchasing Method (A or B or C):
c. E-mail or address:
d. Date of payment:
e. Payment reference number:
and email to email: radzi_hamid@yahoo.com
Note:
a. Copyright in each Articles, Dissertation and Theses is retained by the author. All right reserved.
b. Please note that because I custom print copies when receiving orders, articles, dissertation and theses can only be returned in the unlikely event of a production defect.
c. The order will sent to the address or email after received the payment.
Comments
to pay a quick visit this blog, Keep up the fastidious work.
Also visit my page; Www.EjaculationTrainerDiscount.org