Asean embraces a rogue regime while inking a Charter for Big Business

Asean embraces a rogue regime

while inking a Charter

for Big Business

 

anilnetto.com 

So the Asean leaders have signed a Charter in the wonderfully democratic nation of Singapore in the company of leaders from Burma’s rogue regime. (Check out this excellent documentary “Burma’s Secret War”.) Each member nation now has to take the Charter back to their home countries so that it can be ratified by their respective parliaments – which shouldn’t be much of a problem, considering how democratic Asean member nations are and how much their governments have the interests of the people at heart. Which leads to the question: why not a referendum as this is a hugely important document that affects the peoples of 10 nations? That will be the day…

Civil society groups that lament that the charter is too state-centred rather than people-centred are missing the point. It was never meant to be people-centred – even though that is what most ordinary people would have wanted, had they been consulted. That is why most of the work of drafting the charter was carried out behind closed doors – even though an Eminent Persons Group did briefly consult a sample of civil society groups. The EPG leader, Musa Hitam, had told civil society representatives that he considered the inclusion of a reference to a human rights mechanism or body as a great achievement. But such a body would predictably be toothless – if and when it is formalised – for some time to come.

So let’s not get side-tracked by the lip-service paid to human rights or the sweet -sounding, but ultimately unenforceable, pledges about democracy.

The Charter is not about protecting the rights of ordinary people including migrant workers, refugees and asylum seekers. If it was, do you really think those undemocratic or authoritarian governments among the Asean member nations would have signed it?

Instead, it’s all about facilitating the interests of Big Business as well as providing an institutionalised framework that would, among other things, pave the way for the EU-Asean FTA and further the “free trade” and neo-liberal agenda.

How terribly, terribly sad for the people of Asean!

The Judiciary

The Judiciary

by Tommy Thomas

The Court’s first duty is to stand between citizen and State; a citizen aggrieved with any decision of the State should be able to turn to an independent judiciary for justice.  

“The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to annul any attempt to subvert any of the fundamental rights, whether by legislative or administrative action or otherwise”.

The  judiciary’s second duty is to act as the sentinel of the Constitution; that is, to protect, preserve and defend the Constitution from legislative or other attack. Its third duty is to interpret the Constitution. This explains the rationale of the celebrated remark of Chief Justice Charles Hughes of the United States Supreme Court:

“We are under a constitution, but the Constitution is what the judges say it is.”

The Indian Courts, ever vigilant in the protection of very similarly worded fundamental rights in their 1950 Constitution, had creatively pronounced the “basic structure” doctrine whereby Constitutional amendments by Parliament could not go so far as to have the effect of destroying the basic structure and features of the Constitution, which included prohibiting Parliament from abrogating human rights. The Federal Court rejected this doctrine and gave judicial imprimanteur to the right of Parliament, itself a creature of the Federal Constitution, to amend in whichever manner it so chose, its own creator, the Federal Constitution. The major casualty in this exercise of judicial abdication of its constitutional duty is human rights.

First, from India , the principle that in testing the validity of any state action (whether executive or legislative) which impacts upon any Part P fundamental liberty, the Court’s duty is to consider whether such state action “directly affects the fundamental rights or its inevitable effect or consequence on the fundamental rights is such that it makes their exercise ineffective or illusory”. Secondly, from the Privy Council, the principle that a constitution should not construed rigidly or with austerity; instead, it should be interpreted generously befitting its special status and character as a living constitution.

not only in the Indian Constitution, but also in the European Convention on Human Rights, the Canadian Charter of Rights and in the Human Rights legislation of England, New Zealand, Australia and South Africa. Thus, human rights jurisprudence from the very respectable judiciaries of these Commonwealth countries is most valuable and instructive. In the cases of India and Canada, they have the additional benefit of constitutional support. Yet, some judges do not seem to be interested in developments there. Thus, the practise of constitutional law is a lonely one which does not seem to attract the lively interest of either litigant or lawyer; itself, a poor commentary on the state of affairs of human rights.

Infringements of human rights by state agencies in these countries are very similar, the experiences are similar, and case law and their reasoning from their Courts should be followed by our Courts, as happens in other branches of law.

The “Justice in Jeopardy: Report was very critical of some of the controversial decisions; the report concluded with this hope:-

“The Judiciary also has an important role to play in softening the effect of the laws through interpretation and application of the principles of justice and equity. We urge the judges to have the courage to rise up to this challenge. Otherwise, judges will continue to be considered as a tool to quell political dissent and free expression.”

“All along people were confident that the last place they could get justice is in the courts but in the light of certain cases before the courts and certain goings on in some courts, they realized that the courts have let them down miserably. It used to be that the tinting of judges cars was for security but now I say it is to hide my embarrassment.”

History is replete with examples of creeping authoritarianism, it moves quietly, insidiously, step by step. Oppression seldom happens overnight. Loss of freedom is usually gradual. In the graphic words of Pastor Martin Niemoeller:-

“In Hitler’s 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.”

Who is responsible for the bleak of human rights in 21st century ? I would suggest that all of us are to blame. Even if primary responsibility rests on the State in denying space to its citizenry, what has the citizenry done about it. What have all of us done. I am sorry to say, nothing. I am as guilty as the next person. Ultimately, a society gets the human rights it deserves. As James Baldwin said:

“Freedom is not something that anybody can be given; freedom is something people take and people are as free as they want to be”.

Clarence Darrow’s comment is in the same vein.

“You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.”

Justice Learned Hand of the US Supreme Court offered this acute observation:

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”

I hope, and pray, that we have not reached the stage where liberty has died in the heart of the average citizen.

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Substantive and Technical Comments

Redundant Rela

Redundant Rela

Rela’s reported move (New Straits Times, 26 June 2007) to push for a law to legitimise itself and its operations has triggered alarm bells for human rights in Malaysia.
 

Rela, which has become internationally notorious for its indiscipline and human rights abuse against defenceless migrants and refugees, is now seeking to legitimise itself by proposing new laws to enable it to operate as a lawful government department operating independently of the Home Affairs Ministry and the Immigration authorities.

The only law at present that pertains to Rela is the Emergency (Stipulated Powers) Act 1964. As there is currently no real or imagined emergency in Malaysia, Rela’s role as an auxiliary security force is, in fact, redundant.

Continue to read in Aliran’s press release

Rohingya refugees’ dilemma remains unsolved

Rohingya refugees’ dilemma

remains unsolved

There will be nothing for Rohingya refugees to celebrate this year on World Refugees Day. Their hope of obtaining temporary settlement in Malaysia under the IMM13 special pass was squelched by the government about a year ago.

It had taken the government nearly four years to implement the positive measure to grant Rohingya refugees and asylum seekers registered with the United Nations High Commissioner for Refugees (UNHCR) the IMM13 status. This status would have facilitated their legal employment and provided access to education for their children.

The granting of Ids to the Rohingya became government policy in 2003 – but remained unimplemented by the Immigration authorities under the Home Affairs Ministry for nearly two years. In November 2004, Malaysiakini reported the announcement to implement the policy by Minister in the Prime Minister’s Department Mohd. Nazri Abdul Aziz in a meeting with the UNHCR’s Representative in Kuala Lumpur, Dr Volker Turk.

Despite this public announcement and the UNHCR’s positive response welcoming the move, actual implementation of the measure took two more years to be activated. On 1 August 2006 the process was finally implemented but was frustrated less than two weeks later amid accusations of fraud, bribery and corruption by certain parties involved in the registration process, according to Malaysiakini.

Continue to read in Aliran’s press release_