A Human Rights Act (HRA) for Malaysia?

This is in line with the reform agenda of Malaysia Baharu.

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Published by Malay Mail & Academia, image from Malay Mail.

Malaysia should have its own Human Rights Act (HRAM).

This is in line with the reform agenda of Malaysia Baharu. There is a need to send a strong and clear signal to outsiders of our country’s commitment and dedication to promoting and safeguarding human rights domestically.

It will also send a clear intent to the rakyat that the government is serious about protecting and entrenching their human rights.

Our country already has the Human Rights Commission of Malaysia Act (1999) which provides for the establishment for the statutory body known as the Human Rights Commission (Suhakam).

In addition, there is also the National Human Rights Society (HAKAM) constituted under the Societies Act (1966).

However, the HRAM being envisaged in this article will go further and beyond the limited role and function of Suhakam, which being a non-judicial body, is only vested with the powers to advise the government in formulating legislation as well as inquire into complaints of breaches of human rights, inter alia.

Suhakam lacks the executive or legislative or judicial powers that are necessary to check-and-balance and constrain the excesses of the State and its apparatus. It therefore also lacks that aura of authoritative prestige to ensure that human rights abuses are remedied effectively in the country.

In the UK, the HRA (1998) was enacted by the Labour government of Tony Blair as part of the major constitutional reforms and shake-up in line with the times, i.e. the country’s membership of both the EU and the European Convention on Human Rights (ECHR).

The HRA (1998), of course, was passed by the British Parliament in order to facilitate the domestication of Convention rights into UK law — to give direct effect and enforceability at the domestic level.

Coming back to the proposed Human Rights Act for Malaysia (HRAM), just as the Foreign Policy Framework for a Malaysia Bahru embodies our country’s renewed direction on the external front, so too the HRAM can play that role on the domestic front.

At the same time, indirectly and concomitantly, the HRAM would also inevitably complement and supplement the constitutional, institutional, political and legal reforms agenda of the government.

he HRAM, by default, would strengthen the hand of the judiciary and enhance the separation of power. Judicial independence and separation of powers — where the judiciary is not subordinated to Parliament in the context of the written Federal Constitution would be enhanced under the HRAM.

This is because the HRAM would stipulate that its provisions are grounded in the “basic law or structure” of the Federal Constitution — meaning the non-negotiable or unalterable provisions that are not subject to amendments or change.

And that only the Federal Court is invested with the power of not only interpretation but judicial “law-making” (judicial activism within the constraints of the Federal Constitution) — in effect, “rewriting,” not the Federal Constitution but legislation.

In other words, the HRAM would empower the judiciary (from the High Court onwards) to strike down any Act of Parliament deemed to be incompatible with the Federal Constitution.

Hence, the HRAM will go further and beyond the limited role and function of Suhakam.

By way of digression, the HRAM is unlike the HRA (1998) of UK where the superior

courts cannot declare an Act of Parliament to be invalid or unconstitutional simply because of parliamentary sovereignty. Under the British HRA (1998), superior courts can only make a “declaration of incompatibility” which has no legally binding effect on the UK Parliament.

The Executive-sitting-in-Parliament, legally in principle, can decide whether to acquiesce to the judgement. In practice, approximately “9 out of 10 times,” there will be compliance in the form of a remedial order by way of section 10, HRA (1998).

The remedial order executed by the relevant Minister would proceed via the route of delegated or secondary legislative process. This means that the remedial order, i.e. amending the incompatible part of the provision, will be fast-tracked rather than going through the legislative process which can be arduous and cumbersome.

In short, instead of Parliament as a whole doing the amendment, it will be the Executive acting under the HRA (1998). In effect, this gives the Executive the power to execute laws in the context of primary legislation (i.e. Acts of Parliament) but through the process of delegated or secondary legislation.

Notwithstanding, the “highest” court of appeal in the context of the HRA (1998) is the European Court of Human Rights (ECtHR) — in effect, a supra-national judicial body.

Its direct effect at the domestic level, however, remains political (rather than legal) in principle.

Now, unlike the UK, the HRAM will not provide for venues of appeal to a court outside the country such as the ECtHR or the International Court of Justice (ICJ) or to the Privy Council (the link thereof was broken in 1982).

However, a special or specialised court on human rights could be created, with the Federal Court as the highest and final court of appeal. This would be analogous to the special or specialised courts already in existence such as the Special Criminal Court on Sexual Crimes Against Children and the Court for Rulers.

The HRAM will also elevate our country’s status in international fora as well as eminently and appropriately complement and supplement the human rights dimension of the Foreign Policy Framework for a New Malaysia.

It will add to our credibility in addition to boosting our image as a leading outspoken and vocal proponent of human rights issues.

Lastly, this will definitively represent a lasting legacy bequeathed by the Pakatan Harapan government to our beloved nation.

Jason Loh Seong Wei is Head of Social, Law and Human Rights at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

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