This is why my new Dean is cool: charting new human rights

If you think that this post  butter-ups my Dean, then you are probably right. That could be the effect of it, but it is definitely not my intention. You’ll know what my intention is when u read the last few lines in this post.
So, the new human rights that i was referring to is not that new after all. But people are always more interested in civil/negative/first generation rights than the second or third generation of human rights, thus neglecting two of the very important rights.  The reasons for such attitude will not be discussed here.

The two that i was referring to are:

1. Right to information privacy

2. Right to clean water supply

The right to information privacy is one of limbs under the umbrella of right to privacy guaranteed by article 12 of the UDHR. The other 3 limbs under this head are, right to bodily privacy, right to territorial privacy and privacy of communication.

The right to information privacy simply guarantees that personal data such as your bank account balance, your DNA and whether or not you are HIV-positive, even your photographs and your mobile phone number, are to be treated like all other  personal property which must be guarded against the invasion of a third party.

Any invasion on a such personal date (disclosed or exposed without the consent of the owner) will directly affect one’s human dignity. The priceless possession which the law of human rights ultimately seeks to protect.

Well, i guess you now know why there’s such a furore when there was an introduction on the MyKad, the DNA bill and the mandatory pre-marriage HIV test for Moslems.

So what do we need?

- A law protecting personal data.

And who drafted the Bill for the second time after discovering that there are several errors in the first bill drafted by the AG guys?

- My Dean. (which is why he’s cool)

In relation to the right to clean water, which was recognised recently by UN as a fundamental human right, a new bill will also be read in the Parliament when it seats again next year. Hopefully we can finally drink from the tap without worrying about getting sick after the law is enforced.

And who drafted the Bill?

- You guessed right!

And this is why my Dean is cooler than yours. So what have your Dean done to contribute to nation building,ATC LLB London?

It’s not a piece of chewing-gum wrapper

I understand that this entry comes a little to late as everything has already been swept under the carpet- the Malaysian-style. But I believe that one ought to take full responsibility of what one write or say, online and offline. I have taken lots of time and serious thinking before presenting this new twist.

Tomboyism and Yoga has absolutely zero connection under the normal “bird-chirping days”. You can hardly find a tomboy doing yoga. As a matter of fact, no tomboy enjoys holding their arses in the air.  But of course, here in Malaysia, everything has its twist. ( i hope by now you expected what this post is all about)

The  fatwa on tomboyism and on practicing yoga must adhere to human rights standards. And when I say “human rights standard” here, i choose to confine the ambit to those found in Part II of the Federal Constitution. And if it does not, it can be struck down as unconstitutional under Article 4(1) of the Constitution.

To put it simply, a fatwa is an answer when there’s a doubt as to whether a particular practice or lifestyle is acceptable under Islam. Under the law, when the fatwa is endorsed by the fatwa committees in various states and the Federal Territories and then gazetted, it became binding on all Muslims. And when that happens, it is a criminal offence under to law to act in contempt of, to defy, to disobey, or to dispute the direction. An ordinary Muslim is not even allowed to question the reasonableness of the fatwa.

But quite recently some rulers of the state had voiced their concern that the ruling made by the National Fatwa Council must first be presented to the Conference of Rulers for further discussion and deliberation before any action is to by taken to make the ruling a law.

Now, here’s my twist. When the ruling made is presented to the rulers, can the rulers, as Head of Islam of each State, make any decision on the rightfulness of the ruling? Or in other words, can the Sultans say “nay” to the ruling prohibiting tomboyism and the practice on Yoga?

My answer to that is “yes” as the deliberation of the Head of Islam cannot be reduced to mere formality and the Head must be given the power to review the ruling substantively.

What follows is,  can this power be exercised arbitrarily without any limits? The answer is a straight “NO”.
The reason being,

1. The Conference of Rulers as well as the position of the rulers as Head of Islam were created by the Constitution. Hence, the constitution must prevail. All limitations and checks found in the Constitution must apply to all institutions formed under the Constitution, and this includes the three branches of the government as well as the Monarchs and the Conference of Rulers.

2. The Federal Constitution is not a piece of chewing-gum wrapper! (to quote Justice Sri Ram). No matter how high the law of religion is, is it not higher than the Constitution. And i believe no one will dare to say that the doctrine of constitutionalism do not apply.

My point is simply this, in the event where the Conference of Rulers and/or the Sultans endorse the ruling made by the National Fatwa Council on tomboyism and Yoga, the Ruler will be acting unconstitutionally and the fatwa can be struck down for violating article 5, 8, and 10 of the Federal Constitution.

If you are asking this –> what does fatwa got to do with me, a non-Muslim?

The answer is this, the fight for human rights is a fight of all human.  We are born as humans first before anything else. Will you say that the war against apartheid is a matter only to those in South Africa? I doubt that.

Martin Niemoller once said,

“In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”

I am doing this because it is also MY business!

Tsk Tsk .. naughty boy [updated]

     At least one person will be unhappy with this post. : ) but here’s what happened. the Student Representatives Council of Universiti Malaya had asked its president Afandy Sutrisno Tanjung to step down. why? Because he’s racist ! And this is bad. Being a racist in Malaysia is just as bad as Wilder’s “Fitna”. You naughty boy !

     You can’t issue a public statement calling people to “berbangkit” because of “tindasan”. Instead you must say things like, “Marilah kawan-kawan kita bersama-sama berusaha dalam bulan peperiksaan ini supaya kita boleh membaiki nama Universiti dan menjadi manusia yang lebih berjaya. Ini adalah penting untik memastikan bahawa “ranking” UM dalam TIMES University Ranking adalah tidak lebih daripada tempat ke-589 dalam dunia ini. Berusahalah!”

     Afandy, you might not know a low-profile guy like me. But here’s a piece of advice in case you are google-ing for your name on the internet. Actually i dont have any good advice. Just step down and stay away from politics.

 

 

On Abolishing the Death Penalty

The death penalty as a form of corporal punishment for criminals has been around since civilisation. Such punishment is imposed upon a variety of offence in the Hammurabi’s code, a code of laws developed by the king of one of the first empires, dates back from the third or second millennium before Christ. Socrates and Jesus were perhaps the most famous people ever to be condemned to such punishment[1]. Thus, history tells us that the society has for many years found the death penalty to be a form of just punishment meted out in the name of justice. This paper will examine the philosophy behind this justification and then try to prove that this justification, although applicable in the past, could no longer be sustained in the modern society. And in order to do so, the paper will be divided into two parts i.e. (i) the justification of death penalty by ancient philosophers, where will see the arguments and counter-arguments for the retention of death penalty and (ii) reason for abolishing death penalty, primarily because such abolition is part of the civilizing mission of modern states. 

(i) The justification of death penalty as claimed by ancient philosophersPrincipal of retributive justice           

The most basic theory justifying punishment in general and death penalty in particular is the foundational notion of retributive justice. The rational behind this notion is that criminals deserve punishment or in more simple terms, those who caused sufferings deserve to be forced to suffer. This notion is further divided into two types. The first type is lex talionis, which refers to the idea that punishment should be in a form that is equivalent to the suffering caused by the criminal or in a more biblical injunction of “life for life, eye for eye, tooth for tooth” in Exodus 21:23[2]. Second, lex salica retribution involves punishment through compensation, and the harm inflicted can be repaired by payment or atonement.            

Historically, retributive justice is based almost entirely under lex talionis retribution. According to Plato, penalties act as prevention for other crimes with the exception of death penalty where it is applied in the most serious crimes such as murder and crimes against the state.  Plato has said that:            “…if someone is proved guilty of a murder, having killed any of these peoples, the judges’ slaves will kill him and throw him naked in a cross-road, out of the city; all the judges will bring a stone in the name of the whole State throwing it on the head of the corpse, then will bring him out of the State’s frontier and will leave him there unburied; this is the law”.[3]           

In the Medieval period, Aquinas (1224-74) looking from the Christian world-view, opined that punishment (poena) is to be understood as an evil which consists in the infliction of harm upon a person contrary to the will of that person and the punishment imposed as a response to a morally evil act or fault (culpa) which has been voluntarily committed by the person concerned, and for which the person is responsible and can be held blameworthy (Summa Theologiae Iallae, q.48, a.5)[4]. Aquinas further provided a list of several capital offences which includes,  “sins against God, murder, slave raiding, disrespect to parents, adultery, incest, unrepentant heretics and forgers, thieves, who execute criminals without due authority and those who kill accidentally during the course of committing some other crime, state enemies.[5]”           

It is a common viewpoint of the abolitionist of death penalty that retributive justice in a form of lex talionis is rooted on the psychology feeling of vengeance and revenge and therefore barbarous and meted out without rational thinking. However, the writers are of opinion that such views are made prematurely. Lex talionis is in fact closely associated with the principal of equality, a principal derivable by the faculty of reason that all men possessed according to the legal theory of natural law. When everyone are by nature born equality under the law, then no one is entitled to obtain any advantage by breaking any law. But when violence does occur, the person who commits such violation must be punished by taking away the advantage that he has taken from the society or in other words, the equilibrium in the context of law in a society must restored. Hence, “an eye for an eye, a life for a life” or in any form that is equivalent to the suffering caused by the criminal.            

It is also a common argument that lex talionis-oriented form of punishment is not practical, for it will only mean that the law must provide punishment of raping the rapist, torturing the torturer and burning down houses of arsonist. Many writers are of view that strict adherence to lex talionis is not required but lex talionis must necessarily be qualified to call for doing to the offender as nearly as possible what he has done to his victim[6].

Principal of utility

The utilitarian principal was introduced by Jeremy Bentham (1748-1832) where it is a benchmark to evaluate the effect of the law. According to this benchmark, a good law gives greater happiness to a greater number of people.  In his theory, if the magnitude of pain is much greater than the magnitude of pleasure he would be expecting by the consequence of his act, then he will be prevented from doing it. In Bentham’s own words, he described that the recurrence of an offence may be provided against in three ways that is by taking from him the physical power of offending, by taking away the desire of offending and by making him afraid of offending.[7] In the first scenario, the individual can no longer commit the offence as there is physical incapacity, in the second case, the individual no longer desires to commit the offence as there is moral reformation and in the third scenario is that the individual might no longer dare to do it as there intimidation of the law. The utilitarian argument is that capital punishment deters many criminals from murder and furthermore, killing murderers prevents this crime from happening again. It is also said that the state saves money by killing murderers instead of keeping them in prison for life at the expense of the community. Hence, the scenario provided will contribute to the greater balance of happiness in the society. However, the justification of death penalty based on the utilitarian theory entails several criticisms. The first being, there is no concrete evidence to show that the death penalty provides a better deterrent as compared to life imprisonment. A survey of research findings on the relation between the death penalty and homicide rates, conducted for the UN by the  in 1988 and updated in 2002, concluded: “…it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment.”[8]The second criticism concerns the ratio of innocent lives saved per execution forwarded by political philosopher Adam Bedau[9]. According to Bedau, by executing 5 criminals may indeed save the lives of 5 innocence lives in the future. However, the number of lives saved will not be increased proportionally as more criminals are executed. Eventually, it may take one thousand additional executions to save only one additional innocent life[10]. If Bedau’s calculation is correct and death penalty does in fact fail to serve its purpose as a deterrent to commit crime, then the utilitarian principal would fail because no added value of happiness will be given to the pain-pleasure calculus. However, it is submitted that neither side of the argument for and against the death penalty based on the utilitarian principle provide any conclusive empirical evidence. Retentionist claims that death penalty is indeed an effective deterrence as compared to life imprisonment because the criminal will never commit another murder once he has been executed. However, statistics have shown that prisoner officers and inmates were murdered in prison by prisoners who are serving life sentences for murder[11]. There are also contentions that death penalty is an irreversible penalty. Coupled with the fact that the justice system is administered by human beings and therefore not entirely foolproof, sentencing an innocent person to the gallows would cause the people to lose confidence in the justice system – a result which will undermine the peaceful existence of a society, creating unhappiness. On the other hand, there is no empirical evidence to prove that life imprisonment is a better form of punishment in the context of deterrence as no one when committing a serious crime like murder would ever be in a rational state of mind or will consider the consequences of his action. As a result to this, it is submitted that the argument surrounding the utilitarian principle is uncalled for and without basis and further research has to be done in balancing the weight of arguments from both sides.

Right to life and social contract           

It is the contention that the right to life is not an absolute right especially in the context of a murderer. This contention commonly raised by the retentionist can be seen in two different viewpoints.  Under the theory of legal positivism, a right of a person is a positive right derived under positive law, which are question about fact. Jeremy Bentham, for example said: “Right is the child of law; from real laws come real rights, but from imaginary laws, from ‘laws of nature’ come imaginary rights….Natural rights is simple nonsense….”[12]. Bentham defined law as, “an assemblage of signs, declarative of a violation, conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons who are in the case in question are or are supposed to be subject to his power”. Hence, from a positivist viewpoint, the sovereign has the ultimate power to pass laws, which includes laws which curtails a person’s right to life and laws on death penalty.           

According to Thomas Hobbes, whose Leviathan transposed the idea of natural law into individualist terms, men live in the perilous and insecure state of nature authorise a sovereign to declare and enforce the rules by which they live[13]. A man in the state of nature has the right to everything, even to one another’s body. To prevent the occurrence of war and insecurity that was created by nature, the first thing a rational man does with this right of nature is to get rid of it. The ruler is thus given unlimited authority to make laws and it is the subject’s duty to obey them. Henceforth, under the rule of absolutism propounded by Thomas Hobbes, the ruler is given the power to make laws to protect the subjects from their own vulnerability. Therefore it is safe to say that Thomas Hobbes is of opinion that the death penalty is justifiable as long as it is a law made to protect the subjects.           

John Locke, whose Two Treaties of Government created great impact on the declaration of America and the French revolution, define ‘political power’ at the start of the Second Treatise as including ‘a right of making laws with penalties of death[14]’. This has created the impression that in Locke’s view, a legitimate government necessarily possesses the right to impose death penalty as a punishment. Even though every human being is born with the right to life, liberty and property, the right of a murderer is forfeited by his act of killing an innocent victim. Further more, a rational man enter into the social contract with the ruler by surrendering his rights to the ruler. The ruler may then make laws to protect the interest of the subjects.            

 However it is pertinent to note that, John Locke’s philosophy, influential it may be, has attracted several criticism with regards to his opinion on right to life. Italian reformer, Beccaria argued that in a social contract no one will be willing to give the state power to his life, for the preservation of life is a fundamental reason one enters into a social contract[15]. Another point worth noting is that, even though the readers of John Locke’s Two Treaties of Government have understood his work in terms of the later practice of liberal, democratic and secular states, the background of John Locke is profoundly theological. The idea of secularism found within the Two Treaties of Government was in fact a document designed to justify resistance to the pretentions of divine-right monarchy threatening to abuse the prerogative powers attached to the English crown[16]. John Locke said that men are God’s property and may not dispose of each other, or even of themselves, entirely as they wish[17]. This is, of course, in line with the biblical notion of “sanctity of life”. How then does John Locke reconcile this with his later statement that political power has the right to make laws that could impose death penalty, remains a question.

(ii) Reason for abolishing death penalty           

From part (i) arguments have been made to support the death penalty, so were arguments made against the imposition of penalty, and both arguments rebutting one another making the debate endless as there were clear flaws on each sides even though justified by legal philosophies. However, it is the contention of the writers that there is one good reason that states must take action to reduce the need of all forms of corporal punishment including death penalty. The reason referred to is that abolition of death penalty and other forms of corporal punishment is a part of civilizing mission of a modern state.           

In The Genealogy of Morals, Nietzsche says that in the early times “pain did not hurt as much as it does today”[18]. This is of course an inevitable truth as the progress in civilisation is characterized by a lower tolerance for one’s own pain and that suffered by others. And this is appropriate since via growth in knowledge, civilisation brings increased power to prevent or reduce pain and, via growth in the ability to communicate and interact with more people, civilisation extends the circle of people with whom we empathize[19]. In short, by publicly refusing to do horrible things to our fellows signals the level of our civilisation and by our example continues the work of civilizing[20].           

Earlier, the retentionist claimed that the lex talionis must be qualified and not to be applied with strict adherence except in cases of murder. It is submitted that there was a point of time where lex talionis was in fact applied strictly to all criminal offences and violation of rights, i.e burning arsonist house and torturing torturer, but through civilisation lex talionis became a qualified doctrine. And it will soon be a time, through civilisation, where the qualified lex talionis has no application at all.           

Another example will be in the arena of international laws in particularly, laws of armed conflict and international human rights law. After witnessing the nightmare of the two world wars that took away lives of millions, and the aftermath of the Hiroshima and Nagasaki bombings, human beings began to look at war as a serious violation of to humanity. Peace-loving is often raised as an important agenda when it comes to settle disputes and conflicts. This clearly shows that civilisation involves the taming of the natural environment and of the human animals in it, and that the overall trend in human history is toward increasing this taming[21].           

Though the crime of murder is the most severe offence, the punishment of life imprisonment is the most suitable punishment. Life imprisonment is regarded as “civilly dead”[22], for a prisoner condemned to spend his entire life in prison would suffer the death of freedom and the cell will be their cemetery. Besides, life imprisonment is a reflective pain. Physical pain in every corporal punishment, including death penalty, is cruel and inhumane as it is administered via a body, the pain is foreseen, and humanly administered death strikes us with the urgency that characterizes intense physical pain, causing grown men to cry, faint and lose control of their bodily functions[23]. This is made worse when there are laws which impose a mandatory death penalty, excluding any sort of mitigation on humanitarian ground. Laws can be administered so strictly that death penalty could be imposed upon juvenile and women[24].  

Conclusion           

A society is a justier society when it is limited in the degree of force it can be used against its subjects because it will require to gain its subjects trust and cooperation by offering them fairer terms. It is also the fundamental that every human being respects another’s life to live with dignity – a requirement so closely related to civilization. Hence, are we civilized enough?

---

[1] Dixon Cox, Justice in Retribution.7 Nov 2007 <http://www.cwrl.utexas.edu/~tonya/spring/cap/dustin.htm#WorkCited>.

[2] <http://atheism.about.com/library/glossary/political/bldef_lextalionis.htm>.

[3]  Death penalty: When Life Generates Death (legally)<http://library.thinkquest.org/23685/data/greeks.html>.

[4] Brian Calvart, “Aquinas on Punishment and the Death Penalty” The American Journal of Jurisprudence (1992) page 262.

[5] Ibid. page 261

[6] Reiman, Jeffrey H., “Justice, Civilization, and the Death Penalty : Answering van den Haag”, Philosophy & Public Affairs, Vol.14 no.2 115-148.

[7] Jeremy Bentham, “The Aims of Punishment” pg 54.

[8] Roger Hood, The Death Penalty: A World-wide Perspective, Oxford, Clarendon Press, third edition, 2002, p. 230, quoted in http://web.amnesty.org/library/index/engact510022007

[9] Hugo Adam Bedau, Punishment, <http://plato.stanford.edu/entries/punishment/>.

[10]Internet Encyclopedia of Philosophy, Punishment, <http://www.iep.utm.edu/c/capitalp.htm>.

[11] Casey Carmical, Death Penalty: morally Defensible?, <http://www.carmical.net/articles/deathpenalty.html>

[12] Cranston, Maurice, “What Are Human Rights?”, The Human Rights Reader, Ed., Walter Z. Laquer,(New York: New American Library,1979),17-25.

[13] Minogue, Kenneth, “The History of Human Rights.”, The Human Rights Reader, Ed., Walter Z. Laquer,(New York: New American Library,1979),3-17.

[14] John Simmons, Locke on Death Penalty, <http://www.royalinstitutephilosophy.org/articles/article.php?id=22>.

[15] Frederick Raucher, Kant’s Social and Politically Philosophy,  http://plato.stanford.edu/entries/kant-social-political/

[16] Supra note 12 p9.

[17] Ibid.

[18] Nietzsche Friedrich, The Birth of Tragedy and the Genealogy of Moral, (New York:Doubleday,1953) quoted in supra note 6.

[19] Supra note 6 p135.

[20] Ibid.

[21] Supra note20.

[22] Ibid note 20. p130

[23] Ibid.

[24] See case of :Lim Hang Seoh v Public Prosecutor [1977] 1 MLJ.

Universalist v Relativist

The subject on human rights is often shrouded with controversies. To make matter worse these controversies has been around for awhile, then faded away into silence and resurrected several times and yet no solutions or agreements on how this issue should be dealt with. Perhaps it is this on going and continuous characteristic of these controversies that prompted the late philosopher Jeremy Bentham to label rights as “nonsense on stilts”. This paper will only discuss on the much debated topic on human rights i.e. should human rights be universal or should it be culturally relative.          

The major challenge faced is in understanding the exact definition of “universalism” and that of “cultural relativism”. Not only does the meaning varies from one writer to another, the scope of what amounts to the above notions seem to be expanding from time to time and sometimes merely due to certain claims of human rights by a small class of people in a particular region. Most of the time, these notions are given a new definition because of the self-centered nature of human beings seeking to benefit for their very own interest.

The history of the debate deserves a brief mention here. The clash between universalism and cultural relativism impacts the moral foundation of human rights. This is also largely due to the different views of what amounts to “human dignity” and how human status is perceived in a given society. The peak of the debate began at the United Nations Conference on Human Rights that was held in Vienna in June 1993, where the world saw the confrontation between the universalist, mainly represented by Western countries, and the cultural relativist, represented by Asian and African nations. The clashes between them has its aftermath in the Bangkok Declaration of Asian Government on March 1993 and also in the Tunis Declaration which was held among the African states. From thereon, cultural relativism is seen as a main challenge to the universality of human rights. As observed by Z. Brzezinski:Culture is now going to be the diving line in the debate over the question of freedom and the question of human rights.[1]           

This paper will discuss on how this debate between swayed from away from the original idea of human rights and what can and should be done in order to redraw the path of human rights. For convenience, this paper will be divided into 3 parts namely, (1) arguments against universalist, (2) arguments against cultural relativist, and finally as a conclusion (3) the way forward with a conciliatory approach between the two.

1.  Arguments against Universalist               

As mentioned the scope of universality varies. Or in other words, there are different degrees of the universality of human rights, often couched in different terms. “Radical universalism” would hold that culture[2] is irrelevant to the universal validity of moral rights and rules[3]. This is sometimes also known as “hard liberals”, who believe that human rights are postulate by pure reason necessarily being accepted by all rational beings and that belief are not only true but are certain and definitely not in doubt[4]. Then, there are what is known as “strong universalism”, a term used to denote those who considers culture a secondary source of the validity of a right or rule. Here, it presumed universality but the relativity of human nature, communities, and rules checks potential excesses of universalism[5]. For the purpose of this discussion and for comparison with cultural relativism, “radical universalism” or “hard liberals” will be used as they heeded by and represents the governments in the Western region that insist that human rights applies in the same way in every nation regardless of their state of development and the differences in the culture. The universalist claims that human rights has its roots in natural law. The theory of natural law was propounded since the ancient Greeks and Stoics and followed by philosophers and thinkers of the European in the Medieval and Enlightenment period. According to this theory, rights can be deduced by pure reasons and morality. Rights[6] are thus inborn and inalienable and belong to every individual by virtue of this humanity. Influential thinker during the Enlightenment period, John Locke, who played a significantl role in the American independence and French Revolution and a few others in his time like Rosseau and Hobbes, asserted that fundamental rights are derived from the social contract between the subjects of the state and the rulers. The individuals who act as subjects of the state by their general will allow the rulers to regulate the affairs in the society and in return, the rulers must protect the rights of the individuals. Failure of the rulers to comply with the social contract will justify the individual’s action of overthrowing the ruler.            

The individualistic nature of human rights went on to create a series of ideas that the cultural relativist could not agree upon. The first being secularism, where religion or beliefs is placed in a limited area in a person’s life or plays no role in a person’s life in public. Hence, all laws governing human rights are not related to religion or God. The second is that of focusing on human rights rather than rights of the community at large. The last and most controversial is that all human beings have exclusive rights to their personal autonomy or a right to do whatever they wish to their body. This is also termed the right to privacy[7].            

Universalist claims that, by the secular discourse human rights are deduced either from empirical facts or from the exercise of reason and shall never be determine by religion. This stand clearly goes against the religion of Islam. In Islam, religion is more than mere beliefs, customs and rituals. It is also a way of life. Men, according to the religion, are created in the image of God and that human rights and freedoms are not attributed to Nature but are the gifts of God in accordance with Islam[8]. It is submitted that this is not entirely true, at least not in accordance with the origins of human rights as claimed by the universalist. Natural lawyers often related themselves to the God or the divine order to measure the validity of law. Even John Locke, the man who influenced the universalist, has often referred to God in this Two Treaties of Government. For instance, in the Second Treaties of Government, he wrote that man cannot be dispose of his life because he is not the owner; God is the author and giver of life[9]. Another example is that, in the view of Locke, the origin of the property right is the right of a man to use any of the inferior creatures for his subsistence and the comforts of life. According to    Franciszek Przetacznik, this indicates that God established the dominion of the whole species of mankind, over the inferior species of creatures[10]. This clearly indicates that, human rights as it first began before the post World War II period, does in fact looked towards to the divine order or religion as a basis to formulate human rights. Another interesting point highlighted by Prof Shad Saleem Faruqi is that the secular theories of human rights ought not to be treated as antagonistic to religious views but the two can complement and reinforce each other[11]. He said:Religion’s support for the dignity of man and its insistence on moral limits on governmental powers provide powerful tools for combating oppression and injustice.           

The learned professor then went on to draw a few instances in the past where religion was used as a tool to defend the right of mankind. During the 1960s in the United States, the Christian Church rallied behind the Rev. Martin Luther King in his quest to lead the Negroes from the “dark and desolate valley of segregation to the sunlit path of racial justice”[12].          

Hence, it is submitted that religion plays a big role in advocating human rights. One of the biggest mistakes made by the Western countries is the failure to understand the nature and teachings in a particular religion before criticizing it as anti-human rights. One fine example will be how the Western nations jumped to the conclusion that Islam permits female genital mutilation. It is best, as suggested by Prof Faruqi above that, that the discourse of human rights should seek support from religious doctrine.            

Secondly, the universalist tends to focus more on human rights rather than community rights. This conception is also related to the individualistic nature of rights and coupled with the fact in the early days rights are often perceived as a shield that restraints the state from interfering certain the individual’s liberties.  In this view, the individual is an autonomous and atomistic entity possessed of inalienable rights above and prior to the community[13]. Therefore, the single objective theory if human rights law has always been “to protect weak individuals from the oppression of powerful groups, by giving them ‘inalienable right’ which ‘inhere’ in them as individual”[14]. As a result to that, universalist from the Western countries branded the claim that rights of an individual arises out of its status as a member within a society rather than as an independent person as incorrect. They went on to refute the idea of peoples’ rights asserted by the cultural relativist, and in particularly those that are expressly provided for in the African Charter on Human and Peoples’ Rights[15], by saying that these rights are hardly practicable or enforceable in a court of law. On the other hand, the cultural relativist places more emphasis on the community rights rather than individual rights. In this way, the rights of the individual are to be sacrificed for the greater good of the community[16]. In Islam the aim of freedom is not human creativity but freedom is defined as belonging to the community[17]. Similarly according to the Chinese tradition, the ideal of mutual obligation is regarded as fundamental. Instead of claiming right, Chinese ethical teachings emphasized that by the fulfilment of mutual obligation, the infringement of rights of the individual should be prevented so far as the relation between the individual and the State is concerned[18]. One Professor Woo noted that the Chinese ethical theories hold that human life is predominantly social, with the family or community as the basic unit if human relations[19].            

It is submitted that, the universalist has once again gone way too far from the original idea of human rights. A brief study on the writings of Aristotle will show that human beings exist first by the community within a family, then within its neighbours in a village and from thereon a society is built with the combination of several villages. The idea the universalist has on the priority of individual rights over community rights is largely churned out of the greediness and selfishness of mankind in a capitalist society. The crux of the doctrine of social contract is about the general will of the people to form a government that they desire and for the benefit of mankind in general. This stands in favour with idea that public interest, to a certain extent, should be given priority over the rights of the individual. A good example can be seen in the case of Natalie Abeysundere v Christopher Abeysundere[20], where the Supreme Court of Sri Lanka held that individual rights has to be balanced to the interest of the civilized society.           

The universalist emphasize more on to rights as opposed to the corresponding duties of the individuals. The universalist tends to disfavour the notion of duties since it connotes a moral obligation to another. The scope of duties varies in different culture. In Islam, the duty of an individual is also towards God and the society[21]. However, it is submitted that rights cannot be exercised without duties. Duties set out the scope and the parameters of rights, which without would confine the notions of rights into an abstract idea. Every rights has its limits and every individual has a duty to conform to the rules of the community to which he belongs, insofar as he gives others to expect that he will do so, and insofar as he takes advantage of the reciprocal conformity of other members of the community[22].           

Lastly, the right to abortion, right to gay-marriages, right to gender reassignment, and etc. all that is said to come under the right to live with a human dignity and a right to privacy, does not in any way reflects the idea human rights as it first begun. These claims of rights make no sense until medical and scientific evidence which states that such needs and characteristics are inborn and inherent to certain individuals are tendered as conclusive discovery.

2. Arguments against Cultural Relativist           

Though it is evidently clear the culture diversity and pluralism exist across borders, and culture does in fact influence the thinking and behaviour of human being, this does not mean cultural relativism withstands scrutiny. Being essentially an anthropological and sociological concept loosely grounded in the theory if moral relativism, this concept is often used to justify departure from human rights standards in international law on cultural grounds[23]. This stance often used[24] to legitimize gross violation of human rights in an autocratic regime. Cultural relativist in rejecting cross border and transcendental application of universal norms on human rights and international scrutiny, found its basis on the core principle of the UN Charter i.e. sovereignty of states. The main contenders of cultural relativist in Asia include Malaysia and Singapore, expounding the concept of “Asian values”.The very first criticism on cultural relativist is of the basic dilemma faced by cultural relativist themselves i.e. reliance on principles found in the UN Charter seeks to promote a universal standard and international scrutiny, and the claims by cultural relativist that their theory is universal in application. The espousers of Asian values contends that societies’ or State’s rights always prevail over that of the individual. To them, civil and political rights are not important in the developing state and are ought to be circumscribed in order to promote the “right to development” which will benefit the society in general. Malaysia seek to achieve its status as a developed state by placing the country in what it seems to be a permanent emergency period, where fundamental rights can be derogate and the jurisdiction of courts excluded[25]. Singapore, already a developed state for years shows no signs of giving more political rights to its people. Politicians that questions the actions and policies of the government are often silenced using draconian laws in the name of preventive detention for the security of the nation. It is submitted that the meaning given to “right to development” by these Asian leaders is plainly wrong. Development in terms of economy gains should be balanced with the right of the people to participate in the running of the nation, which can only be done where there are sufficient guarantee of civil and political rights.

4.  The Way Forward - a Conciliatory Approach           

It is my contention that debate between universalism and cultural relativism is in fact a façade to international politics and arguments by both sides seek merely to serve the self interest, making the tension somewhat unnecessary. Where do we go from here? Though there are no perceptual unity and common understanding of human rights, the pursuit of human dignity is universal[26]. It is submitted that one way to reconcile universalism and cultural relativism is to look for the lowest common denominator. This can be done by redefining the concept of “human dignity” under the philosophical doctrine of “minimum universalism”[27]. This doctrine agrees with relativism that moral life can be lived in several different ways, but insists that they can be judged on the basis of a universally valid body of values[28]. These universal values constitute a moral threshold of irreducible minimum, which could not in any way be transgressed. Once such minimal values have been reached, the state is free to organise its way of life according to the diversity of culture.It is submitted that this was in fact what the drafters of the Universal Declaration of Human Rights seeks to achieve. The UDHR sets out the minimal norms of rights, which is to be found in the first 28 articles, and duties and restrictions in art 29 and 30 respectively. It is a document drafted by the Human Rights Commission which was made out of members which contributes significantly on insights from their own culture. Within the 18 member Commission, there were representatives from the then less-developed nations like China, Lebanon, the Philippines, and Chile.  Comments on the Commission’s second draft were received from various countries like Brazil, Eygpt, Mexico, India, Pakistan and South Africa. Furthermore, it was never the intention of the Commission that these universal principles must be implemented in the same way everywhere[29]. Philip Alston Wrote that, “The Declaration does not purport to offer a single unified conception of the world as it should be nor does it purport to offer some sort of comprehensive recipe for the attainment of an ideal world. Its purpose is rather the more modest one of proclaiming a set of values which are capable of giving some guidance to modern society in choosing among a wide range of alternative policy options.”[30](emphasis added). However what is lacking in the UDHR is philosophical foundation. It is submitted that without such foundation, there will be difficulties in determining the scale of values that governs the exercise of these rights and the core value of human dignity will lose its significant. Therefore, there is an urgent need for the United Nation to obtain general consensus from the states in defining the “lowest common denominator”.

---

[1] Quoted by Symonides , Janusz, “Introductory Remarks”, Human Rights : New Dimensions and Challenges, Ed., Janusz Symonides, (Aldershot: Ashgate,1998), 24.

[2] “Culture” in this paper refers to culture in the broader sense which encompasses national and regional particularities and various historical, cultural and religious backgrounds and a way of life.

[3] Jack Donnelly, Universal Human Rights in Theory and Practice, second ed.,(US: Cornell Univ. Press,2002), 90.

[4] Quoted in Nurhalida Mohamed Khalil, “Paragraph 3, Part II of the Vienna Declaration and Programme of Action 1993 : A Reflection of the Approach of the Universalist or the Cultural Relativist?”,(1993) 20 Journal of Malaysian and Comparative Law 184-201.

[5] note 2.

[6] The term used then was “natural rights” which was made famous by philosopher John Finnis in his book Natural Law, Natural Rights. “Rights”, according to Finnis are something that every human being are born with and are self-evident.

[7] It is to be noted that, although these ideas are put in separate categories, they are in fact inter-related. They are related in the way that culture plays no part in the validity of human rights.

[8] note 3.

[9] Franciszek Przetacznik, “Individual Human Rights in John Locke’s Two Treaties of Government” ,(1978) Netherland International Law Review,195-216.

[10] Ibid.

[11] Shad Saleem Faruqi “Human Rights in Legal and Political Philosophy” (1992) XXI INSAF 1-19.

[12] Ibid.

[13] note 3 pg 189

[14] Ibid

[15] These so-called “peoples’ rights” includes right of peoples to existence, to freely dispose of their wealth and natural resources, to their development, to national and international peace and security and the right to a general satisfactory environment favourable to their environment.

[16] Note 3 190.

[17] Ibid.

[18] Youdindra Khushalani, “Human Rights in Asia and Africa”, (1983) Vol.4 no. 4 Human Rights Law Journal 403-442.

[19] Ibid. however, the accuracy of this statement is questionable as a great Chinese philosopher Mencius maintained that a government should work for the people- similar stand taken in the western theory of social contract.

[20] (1998) 1 Sri Lanka Law Report 186.

[21] This is illustrate in the case of Kaliammal a/p Sinnasamy v Pengarah Jabatan Agama Islam Wilayah Persekutuan [2006] 1 MLJ 685.

[22] Daes, Erica-Irene A., Freedom if the Individual under Law, (New York: United Nations,1990),39.

[23] Shestack, Jerome J., “The Philosophic Foundations of Human Rights” (1998) 20 Human Rights Quarterly 201-234,228.

[24] Or rather misused.

[25] Art. 160 of the Federal Constitution.

[26] Note 3, 196.

[27] Bhikhu Parekh, “Non-ethnocentric  Universalism”, Human Rights in Global Politics, ed., Timothy Dunne and Nicholas Wheeler, (Cambridge: Cambridge University Press,1999), 128-159.

[28] Ibid, 130.

[29] Glendon, Mary Ann, “Foundations of human Rights: The Unfinished Business” (1999) The American Journal of Jurisprudence, 1-14, 7.

[30] Ibid.

Learning History

Loss of freedom seldom happens overnight. Oppression doesn’t stand on the doorstep with toothbrush mustache and swastika armband — it creeps up insidiously step by step, and all of a sudden the unfortunate citizen realizes that it is gone.
– Baron Lane

First it’s wrong to speak up your mind in Youtube. And then we are in an Islamic country. Then, they refused to improve the electroral process, because it seems perfect.  Then they silently take away the right to peaceful assembly by imposing stricter subjective requirements. And now they disapprove a “celebration” by the lawyers.

What is this a joke?! Lawyers are like the most honourable people in the society.

Look my friends, we are a better creature living on the face of earth because we have human rights. Wits and intelligence alone wouldn’t be enough for us to survive.

If a snail have it’s shell, and the chameleon it’s “superpower”, we human have human rights. Stop the bullying.

The (Moral) Exception to the Rule : – edited

Raja Nazrin has been saying all the right things this year. Last Friday, he was on the frontpage again, reminding Malaysians to always respect the laws and agencies and be civilised and courteous in their approaches and actions. And if his old man, with respect, His Royal Highness taught him well, he would have known this;  there are always exception to the general rule.

Legally speaking, you don’t have to follow the law if it’s unconstitutional. Of course, be prepare to take the risk by first paying your favourite lawyer friend and then hope he did a good job in convincing the old wise judge. Which reminds me a comic by Claudio Piraro. Now imagine this. You standing in front of the vending machine. Instead, of “Coke”, is was written “Justice”. And imagine you putting in coins into the Justice machine and your friend ask “how much is it?”. And you reply, “i dunno, you just keep putting in the money and hope things turn out right”. (insert laugh here)

Well, that’s justice. Like a vending machine, it jams your coin occasionally. But unlike a normal vending machine, you can never prepare enough “small” change to buy the satisfaction.

Anyway. That’s the legal exception.

Morally speaking, there is absolutely nothing wrong in breaking the law if the law lack a rational standard. This is what we known as civil disobedience.

Civil disobedience is the act of breaking an unjust law deliberately in public with a conscientious intention to communicate to the government the seriousness of their condemnation and the sincere desire for a change in the law or policy. That being said, an act of civil disobedience must only be that of a last resort and done in a peaceful manner. And on top of that, a civil disobedient go to jail happily.

Can they then be regarded as law-breakers as claimed by our ministers, with regards to the peaceful demonstrators in the Hindraf and BERSIH rally? No. An ordinary law-breaker who violates the law has no moral intention to communicate with the society and the government. What more a conscientious motivation of bringing about change in the law and policy.

Are they any difference from radical protesters or terrorist? NO. Terrorist, being the main class of people who deserve the treatment under the Internal Security Act 1960, are people who uses force and arms to seek rapid change of regime. Civil disobedient are peace-loving creature mistreated or neglected by the government and she seeks to defend herself and reinforce the most basic idea of democracy, of what’s is morally right.

A person’s right to civil disobedience is not just a political right, but on all the rights she possessed against her government (Dworkin). It arises when the government failed to honour it’s obligation to protect the people.

The “kedaulatan undang-undang” principle which we pledged to honour every morning in the assembly during our secondary school days does not mean “follow the law in every way”. It really means, the lawmakers have the obligation to make quality laws that respect the fundamental rights of the people, which conforms with the requirement of international standard and has the effect of satisfying and promoting the society’s needs and well-being. It’s only these laws that is supreme and must be followed by the people.

And trust me, Raja Nazrin knew this.

Don’t be afraid to do something when it’s for the right cause and for rights’ cause.

p/s : a special thanks to the very few who visited my blog every two days. Your support is a big motivation. And to those who wish to send me money. Contact me personally. (”,)

The Burning Issue : Update

For a more detailed and complete account on the flag burning issue we’d discussed earlier. Read this.

The Campus Election is coming real soon as there was already signs from the bullish group trying brainwash the newbies.

More exciting stories on that real soon.

At the mean time, let’s hope Subashini obtains the justice she deserves.

No Place for Religion in Law : Update

It has been a great week and it ended on a high note. I had a wonderful conversation with a kind old lady in the photocopy shop at about 11.30 am on various issues regarding the Malaysian legal system. She enlightened me and has given me insights on the formation of Malaysia and the drafting of the constitution, which i wish to share with you here.

This person is Wan Arfah Hamzah. The co-author of “An Introduction to The Malaysian Legal System”, which is literally the “bible” for that subject, and the very first book every law student in my school had probably bought.

When asked about her opinion on the Secular-Islamic debate, she said there’s no question that the constitution is a secular constitution. And more importantly, in the social contract that was made before the formation of Malaysia, the Alliance Party had promised that the country will remained secular. In return, the special status of the Malays and Islam will be recognized.

This is great deal. Those to claimed that Malaysia is an Islamic country always based their argument on the Social Contract.

But hey, now it seems like you have no argument at all! 

Wan Arfah is currently updating her book. And she promised that she will write extensively on this matter.

A Few Good Men

Despite the madness that the government has brought to the country, credits must still be given to a few good men.

Natural Resources and Environment Minister Datuk Seri Azmi Khalid appears to be one of the very few who are still doing his job as the servant of the people, first by improving the EIA report, then rapping town planning agencies for not upgrading the public transport system and promote sustainable development, the good man also set a good example by striking off shark’s fin soup from the menus of official functions.

The second group of people is of course the Auditor-General and his team who exposed the mismanagement of public funds, doing his job without fear or favour.

Thank you.