|
|
| VI INTERNATIONAL LAW AND STANDARDSVI.1 International Instruments |
The UDHR is the principle source of international legal norms with respect to human rights and articulates the rights and freedoms contained in the United Nations Charter (the UN
Charter).[105] All members of the United Nations pledge themselves to take joint and separate action to achieve the purposes of the organization, including the promotion and encouragement of universal respect for, and observance of, human rights and fundamental freedoms for
all.[106] Member States are also required to reaffirm faith in fundamental human rights and in the dignity of the person, and "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be
maintained.[107]
Malaysia became a member of the United Nations on September 17, 1957, and as such, it has an obligation to promote justice, respect for and observance of fundamental human rights.
The preamble of the UDHR sets out guiding principles. Of particular importance are the following statements:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Now, therefore, The General Assembly,
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their
jurisdiction.[108][emphasis added]
The former Chief Justice of the Supreme Court of Canada has stated that the UDHR "vividly underlined a commitment to usher in a new period of human history, one characterized by a profound respect for human
rights".[109]
The International Covenant on Civil and Political Rights (ICCPR)[110] was adopted by the General Assembly of the United Nations on December 16, 1966. It contains important civil and political rights including the right to a fair trial and the right to freedom of opinion and expression. As discussed below, although Malaysia is not a party to the
ICCPR, the convention still serves as an interpretive aid for the meaning of and permissible limits on freedom of expression in the country. |
| VI.2 Application of International Law and Principles to Malaysia |
| There is some debate regarding the legal effect of the
UDHR, and the rights and freedoms contained therein, on member States. Some argue that the UDHR is a non-binding statement of general principles of international law, while according to others, the UDHR is binding on member States as an articulation of the UN Charter and/or customary international human rights norms. |
| VI.2.a International Law as an Aid to Interpretation |
According to the view that the UDHR is a statement of general principles of the highest moral authority, the UDHR does not create binding legal obligations upon member
States.[111] Non-binding international law can serve as an interpretive aid in construing domestic legislation. Provisions of international treaties and conventions, as well as international jurisprudence, can help give content to imprecise concepts, such as the right to freedom of
expression.[112] For example, there is a well established rule that where domestic legislation is ambiguous, the legislation should be interpreted in such a way as to respect and conform with international
law.[113]
Canadian courts have found international human rights law and instruments, including the UDHR and the
ICCPR, to be valuable interpretive aids in defining the meaning of freedom of expression and reasonable limits upon that freedom pursuant to the Canadian Charter of Rights and
Freedoms.[114] As Dickson,
C.J. stated in Reference Re Public Service Employee Relations Act:
“The norms of international law provide a relevant and persuasive source for interpretation of the provisions of the Charter, especially when they arise out of Canada's international obligations under human rights
conventions.”[115]
International instruments, such as the UDHR, can also be relevant to the interpretation of a country's constitution and in defining the content of a right or freedom where the instrument and constitution share similar wording and subject
matter.[116] |
| VI.2.b Direct Application of International Human Rights Principles in Domestic Courts |
A customary international norm can emerge through widespread ratification of international conventions as well as the common practice of States. Many support the view that the UDHR is binding on member States. Some argue that the binding nature of the UDHR comes indirectly by way of an authoritative interpretation of the UN
Charter.[117]
Others argue that the UDHR creates binding obligations because it is an interpretation of the UN Charter and its provisions codify customary international
law.[118] One of the drafters of the UDHR argues that the Declaration has "become an international standard by which the conduct of government is judged both within and outside the United Nations" and that since the UDHR has inspired numerous treaties and conventions, and is reflected in many national constitutions and in decisions of national and international courts, it has now acquired the force of law as part of the customary law of
nations.[119] Following either rationale, Malaysia, as a member of the United Nations, is bound to uphold the human rights standards found in the
UDHR. Customary international law is automatically incorporated into domestic common law and may be applied by domestic courts unless there is a clear conflict between international customary law and the statute or common
law.[120] Under the Malaysian Constitution, Federal law includes "any custom having the force of
law".[121][emphasis added] As Malaysian courts have authority to apply customary law pursuant to Article 160 of the Constitution, such courts have the authority to apply the provisions of the UDHR as part of the customary law of nations. |
| VI.3 Malaysia’s Adherence to International Law |
Unfortunately, Malaysia has recently demonstrated an intransigent refusal to adhere either to its international obligations arising from the Convention on the Privileges and Immunities of the United
Nations[122] or to a binding decision of the International Court of Justice.
The latter decision involved Dato’ Param Cumaraswamy, appointed in l994 as the Special Rapporteur of the Commission on Human Rights on the Independence of Judges and Lawyers. Four private defamation suits were filed in Malaysia, against Mr. Cumaraswamy based on a l995 magazine article containing references to an interview with him. In January of l997 the Secretary General of the United Nations determined that the words spoken by Mr. Cumaraswamy that formed the basis of the four defamation suits were protected by privilege pursuant to the provisions of the aforesaid Convention and called on the Malaysian government to advise the Malaysian courts accordingly. The Malaysian High Court refused a subsequent application in June of l997 to set aside the defamation proceedings and dismissed the Secretary General’s opinion as having, “scant probative value and no binding force upon the court.”
After extensive negotiations failed to resolve the differences between the government of Malaysia and the United Nations on the issue of Mr. Cumaraswamy’s immunity, the matter was referred for opinion to the International Court of Justice. An April l999 decision of the International Court of Justice both confirmed the l997 decision of the Secretary General that Mr. Cumaraswamy’s statements were protected by immunity and determined that Malaysia is bound by the decision of the International Court of Justice. Two statements of interest contained in the summary of the majority judgment are:
“…Mr. Cumaraswamy, in speaking the words quoted in the article in International Commercial Litigation, was acting in the course of the performance of his mission as Special Rapporteur of the Commission. Consequently, Article VI, Section
22(b)[123], of the General Convention is applicable to him in the present case and affords Mr. Cumaraswamy immunity from legal process of every
kind.”[124]
“…according to Article VIII, Section 30,[125] of the General Convention, the opinion given by the Court [the International Court of Justice]shall be accepted as decisive by the parties to the
dispute.”[126]
In reliance on this decision of the International Court of Justice another application was brought to set aside one of the defamation suits on the grounds of Mr. Cumaraswamy’s immunity. This application was refused on October 28/99 by the Senior Assistant Registrar of the High Court Wan Shaharuddin bin Wan Ladin with these words:
“…that the issue whether the Courts in Malaysia should follow the Advisory Opinion of the
ICJ, [the International Court of Justice] I find that the said Convention is not a final and binding
authority.”[127][emphasis added] |
| VI.4 Conclusion on the Use of International Law in Malaysia |
| At best, the rights and freedoms in the UDHR are now part of international customary law and therefore binding on Malaysia and its courts. At the very least, the
UDHR, and other international instruments to which Malaysia is not a party, provide general principles of international law to guide the interpretation and application of Malaysia's national law and permissible limitations on rights and freedoms within Malaysia. As a member of the Commonwealth, Malaysia has committed through the Harare Declaration to principles that require adherence to the broad principles of the rule of law. The Latimer House Guidelines for the Commonwealth to which Malaysia has also committed, further confirm that: “freedom of expression is a universal human right…(and) is the primary freedom, an essential precondition to the exercise of other freedoms.” |
| VI.5 Fundamental Rights and Freedoms under International Law |
Fundamental rights and freedoms that are relevant to the interpretation and application of the Sedition Act include the right to freedom of speech and expression, and the right to life, liberty and security of the person.
A right to freedom of expression is found in numerous international documents: Article 19 of the
UDHR; Article 19, paragraph 2 of the ICCPR;[128]
and Article 10, paragraph 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (The European Convention on Human
Rights).[129] The right to freedom of expression under Article 19 of the UDHR reads as follows:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Other relevant provisions of the UDHR include the right to life, liberty and security of the
person.[130]
The Federal Constitution of Malaysia also includes similar fundamental guarantees. Article 5 provides that "no person shall be deprived of his life or personal liberty save in accordance with law". Article 10(1)(a) guarantees that every citizen has the right to freedom of speech and expression.
Therefore, pursuant to the UDHR and the Federal Constitution, Malaysia has an obligation to promote freedom of speech and expression and the right to liberty of the person. |
| VI.5.a Limitations and Restrictions on Fundamental Rights and Freedoms under International Law |
The Sedition Act offence and sentencing provisions impose restrictions on citizens' rights to liberty of the person and freedom of speech and expression. Both international law and the Malaysian Constitution restrict the State’s power to impose limitations and/or
restrictions[131] on the exercise of guaranteed rights and freedoms. To be legitimate, restrictions of guaranteed rights must meet tests with respect to their scope and purpose.
The purposes for which rights and freedoms might be limited and the requirements of legal limitations are similar under various international instruments, such as the
UDHR, the ICCPR, the European Convention on Human Rights, the Johannesburg
Principles,[132] the Siracusa
Principles[133] and the Malaysians Federal Constitution. Due to the similarity in wording, interpretation and jurisprudence relating to these instruments, they can provide guidance as to the limits on freedom of expression and security that can be legitimately imposed by Malaysian law.
The limitation provisions of the UDHR apply to all of the rights and freedoms contained the Declaration. Articles 29 of the UDHR provides as follows:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.[emphasis added]
Article 30 of the UDHR states:
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
The combined purpose of Articles 29(2) and 30 of the UDHR is to prevent far-reaching restrictions on fundamental human rights. The
ICCPR, Article 19, paragraph 3 states that the right to freedom of expression may be subject to certain restrictions, but that such restrictions:
Shall only be such as are provided by law and are necessary: For respect of the rights and reputations of others:For the protection of national security or of public order
(ordre public), or of public health or morals.
Similarly, the European Convention on Human Rights, Article 10 paragraph 2, characterizes permissible restrictions on freedom of expression:
The exercise of these freedoms, since it carries duties and responsibilities, may be subject to such formalities, conditions, restriction or penalties as are prescribed by law in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights or others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [emphasis added]
Article 4 of The Federal Constitution of Malaysia gives paramountcy to the rights guaranteed in Articles 5 through 13 of the Federal Constitution. Article 4(1) reads:(1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.
Articles 10(2) and 149 give the State limited power to restrict fundamental Constitutional rights. Article 10(2) of the Federal Constitution allows the State to impose only such restrictions on freedom of speech and expression as are necessary or expedient to the protection of certain enumerated public interests by the wording:
as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence.[emphasis added]
Article 149 of Part XI—Special Powers Against Subversion, Organised Violence, And Acts And Crimes Prejudicial To The Public And Emergency Powers—of the Federal Constitution empowers Malaysia’s Parliament to enact temporary restrictions to, inter
alia, the guaranteed freedoms of expression and liberty rights, for the specific purpose of stopping or preventing actions against the state “taken or threatened by any substantial body of persons”. |
| VI.5.a.i General Principles |
| As a general rule of interpretation, restrictions on fundamental human rights must be given a narrow interpretation having regard to the particular right at issue and the purpose of the
restriction.[134] A state cannot impose a limitation for an improper purpose; limitations must be justifiable having regard to one of the specific purposes allowing for
limitations.[135] Limitations must be made in accordance with law, be of general application, and should not be applied in an arbitrary
manner.[136] In addition, limitations should not operate in a manner contrary to the purposes and principles of the UN Charter or the
UDHR.[137] |
| VI.5.a.ii Necessary |
Under Malaysia's Constitution, the ICCPR and the European Convention on Human Rights, limitations on freedom of expression must be "necessary" to achieve one of several purposes.
The Siracusa Principles define the term "necessary" as implying that the limitation:1. is based on one of the grounds justifying limitation recognized by the relevant article of the Covenant;
2. responds to a pressing public or social need; 3. pursues a legitimate aim; and 4. is proportionate to that
aim.[138]
Further, the assessment as to whether a limitation is necessary should be based on objective
considerations.[139]
The Sunday Times v. United Kingdom[140] decision of the European Court on Human Rights is a leading case on permissible State restrictions on and interference with freedom of expression. The Sunday Times Case concerned a newspaper’s ability to publish material about a pending court proceeding involving alleged negligence of distributors of a drug that caused birth defects. The House of Lords issued an injunction against the newspaper preventing it from publishing any material which might prejudge the case. The owners of the newspaper brought a complaint to the European Court on Human Rights, arguing that the decision of the House of Lords unjustifiably interfered with the right to freedom of expression in Article 10 of the European Convention on Human Rights. The European Court of Human Rights found that Article 10(2) of the European Convention on Human Rights did not give States an unlimited power to restrict the right to freedom of expression and held that the injunction imposed on the newspaper by the House of Lords did not meet the test of being ‘necessary in a democratic society to achieve any legitimate purpose’.
In both the Sunday Times Case and in the Handyside Case,[141] the European Court of Human Rights held that a "necessary" limit on freedom of expression required a "pressing social need". The Court found that the phrase ‘prescribed by law in a democratic society’ imported broad freedom of expression rights and narrow permissible restrictions. In the Handyside Case decision, the Court stated:
“The Court's supervisory functions oblige it to pay the utmost attention to the principles characterizing a "democratic society". Freedom of expression constituted one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to Article 10(2) it is applicable not only to 'information' or 'ideas; that are favourably received or regarded as inoffensive or as a matter of indifference , but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society". This means amongst other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim
pursed.”[142]
In other words, a necessary restriction is one that is proportionate to a legitimate government objective and a pressing social need. Further, according to the common law principle of proportionality, a limit on a constitutionally protected right should be no more restrictive than necessary to accomplish its legitimate purpose.
With respect to criticism of government, the European Court of Human Rights made the following comments:“…the limits of permissible criticism are wider with regard to the Government than in relation to a private citizen, or even a politician. In a democratic system, the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities, but also of the press and public
opinion.”[143][emphasis added]
Similarly, the Siracusa Principles state that "[a] limitation to a human right based upon the reputation of others shall not be used to protect the state and its officials from public opinion or
criticism.”[144] As freedom of expression is a fundamental international human right and an essential component of a democratic
society,[145] a proper examination of the necessity of a limitation on freedom of expression must take into consideration the importance of this freedom. |
| VI.5.a.iii Prescribed by Law |
| It is a common principle of international law that any limitation on a fundamental right or freedom must be prescribed by
law.[146] The term "prescribed by law" means that a limitation: (1) must be provided for by national law of general
application,[147] (2) shall not be arbitrary or
unreasonable,[148] (3) must be clear and accessible to
everyone,[149] and (4) that adequate safeguards shall be provided against illegal or abusive imposition or application of limitations on human
rights.[150] |
| VI.5.a.iv Precision and Accessibility |
The two most important requirements for "prescribed by law" are precision and accessibility. The European Court of Human Rights has described the primacy of these two requirements as follows:
“In the Court's opinion, the following are two of the requirements that flow from the expression 'prescribed by law'. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able --- if need be with appropriate advice --- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may
entail.”[151]
A limitation that is clear and accessible to everyone refers to a law that provides citizens with notice of any restrictions on guaranteed rights that is sufficiently precise to enable them to regulate their conduct accordingly. |
| VI.5.a.v Reasonable and Non-arbitrary |
Subsequent to the Sunday Times Case, the European Court of Human Rights added the requirement of limitation of enforcement discretion to the "prescribed by law" test.
"[T]here must be a measure of legal protection in domestic law against arbitrary interferences by public authorities" with respect to rights under the European Convention on Human
Rights.[152]
The United Nations Human Rights Committee has found that the phrase "in accordance with law", which appears in article 13 of the
ICCPR, requires a state to apply the relevant provisions of its domestic law "in good faith and in a reasonable
manner".[153]
In the context of Article 9 of the ICCPR which prohibits arbitrary arrest and detention, arbitrary standards have been described as follows:
“While the context of a minimum international standard cannot be defined or enumerated, one form of arbitrariness is surely within the prohibition of Article 9 -- when law permitting detention is a lex specialis applicable solely to John Doe and not to others. Article 9 implies that the law governing detention must be of general applicability. The arrest of a given person on legal grounds fitting only the specific occasion is arbitrary and notwithstanding the form of law supporting it -- because it is
capricious.”[154]
The prosecution of Karpal Singh appears to be a lex specialis application of the Sedition Act. To be prescribed by law, a state must not apply a limitation on a fundamental right in a selective manner. Any limitation in domestic law must have general application and be applied in good faith and in a reasonable manner. |
| VI.5.a.vi National Security |
The original purpose for the restrictions on speech provided for by the Sedition Act, when adopted by the British colonial authority, was to protect national security.
National security concerns measures taken "to protect the existence of the nation or its territorial integrity or political independence against force or threat of
force",[155] and this purpose "cannot be invoked as a reason for imp osing limitations to prevent merely local or relatively isolated threats to law and
order".[156] Nor can this ground be invoked "as a pretext for imposing vague or arbitrary
limitations".[157]
The Johannesburg Principles recognize that restrictions on freedom of expression that may be imposed for the purpose of national security are
exceptional.[158] The Johannesburg Principles state that laws limiting freedom of expression must be necessary in a democratic society for the genuine purpose of protecting a legitimate national security
interest.[159] To establish that a law is necessary, a government must demonstrate that (1) the expression or information at issue poses a serious threat to a legitimate national security interest, (2) the restriction imposed is the least restrictive means possible of protecting that interest and (3) the restriction is compatible with democratic
principles.[160] A restriction is not justified unless its genuine purpose and demonstrable effect is to protect a country's existence or its territorial integrity against the use of threat of
force.[161] A restriction is not legitimate if its genuine purpose or effect is to protect interests unrelated to national security, including to protect a government from embarrassment or exposure of
wrongdoing.[162]
Further, the Johannesburg Principles provide that for expression to be punishable as a threat to national security, it must satisfy three requirements:
(1) the expression is intended to incite imminent violence; (2) it is likely to incite such violence; and (3) there is a direct and immediate connection between the expression and the likelihood or occurrence of such
violence.[163]
This test applies to criticisms of or insults to the nation, the state, the government, its agencies or public
officials.[164]
|
|
