To deny people their human rights is to challenge their very humanity.
– Nelson Mandela, South African President
Our rights and privileges are not derived from written constitutions or laws but through the expression and principal purpose of human dignity. Respect for human dignity, Ronald Dworkin (1931-2003), the American constitutional advocate and jurist stated, entails two requirements: self-respect, i.e., taking the objective importance of your own life seriously; and authenticity, i.e., accepting a personal responsibility for identifying what counts as success in your own life.
Laws become acutely and painfully necessary when you fail to take charge, be responsible, accountable and response-able if you believe in human dignity as a sword and a shield.
In India, human dignity demands the systematic abolishment of the wretched caste system. It took hundreds of years of toil and labour by thinkers and philosophers to irk the politicians to get rid of this social and cultural cancer. The atheists have had a field day denying and doubting God who plausibly turned a Nelson’s eye to the plight of the so-called Untouchables.
Written laws and constitutions illustrate dichotomy that tend to erode rights when couched in uncertain terms and awkward language. For example, an Act of Parliament, according to Article 149 Federal Constitution (FC), can suspend basic constitutional rights granted and guaranteed by Articles 5, 9, 10 and 13 FC when public order or the nation’s security are purportedly threatened. Parliamentary supremacy?
The FC is the supreme law of Malaysia according to Article 4(1) which grants the judiciary the power of judicial review despite the 1988 amended Article 121(1) purportedly disrupting and diminishing judicial power. An independent judiciary is a check and balance in the nation’s basic structure to make sure that unfettered power is not exerted by any one of the three organs of state in a democracy.
We should be eternally grateful to the Reid Commission for clearly identifying the Supreme Head of the Federation free from political turmoil and turbulence. Sovereign immunity as enunciated in the maxim rex non potest peccare (the king can do no wrong) lives on in the FC.
Ronald Dworkin insisted that constitutional provisions are meaningless without moral principles and that human dignity is an intrinsic and the highest constitutional value, and that it must be considered in judicial decisions. Dworkin’s concept of rights, arguing that rights constitute claims against the state, advances the idea that it is forbidden to sacrifice individual needs and preferences to achieve the public interest. See Loi Kooi Choon v Government of Malaysia [1977] 2 MLJ 187.
Human and humane rights collide with two kindred souls of conflict in section 59 of the Immigration Act 1959/63 (Act 155) and section15B POCA (Prevention of Crime Act 1959 – Act 297) in that they oust the jurisdiction of the courts as an affront to Article 4(1) FC. Both are post-Merdeka Acts of Parliament. Parliamentary supremacy has no place in Malaysian jurisprudence.
It is refreshing to know that Malaysians have the freedom to cull relevant constitutional and jurisprudential references from foreign sources that does not affect or disagree with our peculiar way of life as enunciated in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan & Other Cases [2021] 3 MLJ 759. It makes sense since we imported the Westminster model of “parliamentary democracy.”
Man-made laws seem to espouse inhumane treatment of some races although almost all major religions advance and advocate equal humane treatment of all human beings regardless of race and religion. The constant reminder of the nuances of human dignity as a bulwark of human rights may offer indispensable relief to arrested mindsets longing to create ill-will, hatred and disaffection.
International covenants and declarations of human rights with no known or discernible enforcement power is useless unless the people take it upon themselves to enforce it through peaceful and peaceable means. The fault lies squarely upon unmotivated and disinterested people motivated and interested only with the availability of the daily diet of three-square meals.
Malaysian jurisprudence is caught in the hazardous crossfire between parliamentary supremacy at Article 121(1) and constitutional supremacy at Article 4(1) FC. Human rights and humane rights, like judicial independence, become a toss of the dice between a sitting judge and Parliament. In this context Article 4(1) FC restricts and limits judicial review to post-Merdeka law only.
Human dignity inexorably suffers when people have to fight for their rights through the ballot or the bullet. When people stop caring they inevitably invite the intrepid Pied Piper.
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
