What is the UN and why was it formed?

- ORIGIN
- The United Nations is neither a supra-State nor a government of governments.
It does not have an army and it imposes no taxes. It depends on the political
will of its Member States to have its decisions put into action and relies on the
contributions of its Members to carry out its activities
- The United Nations was founded and established on October 24, 1945
- The United Nation was the second multipurpose international organisation
established in the 20th century, following its predecessor the League of
Nations created by the Treaty of Versailles in 1919
- The headquarters of the United Nations remains in New York City however, it
had regional offices in Geneva, Vienna and Nairobi
- The 6 official languages of the UN are Arabic, Chinese, English, French,
Russian and Spanish
- According to the UN Charter, the UN aims for :
- to save succeeding generations from the scourge of war,…to
reaffirm faith in fundamental human rights,…to establish conditions
under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained,
and to promote social progress and better standards of life in larger
freedom.
- Other than maintaining peace and security at a global scale, the UN also
acquires other objectives involving developing friendly relations among
countries founded on the doctrines of equal rights and self-determination of
the peoples
- After WWII the major Allied Parties agreed to establish a new global
organisaiton to help manage international affairs
- The United States (Franklin Roosevelt), United Kingdom (Winston Churchill)
and the Soviet Union (Joseph Stalin) took the lead in designing and
determining the decision making structure and functions of the organisation
- The “Big Three” states were hindered by disagreements on issues that
foreshadowed the Cold War
- The Soviet Union demanded for individual membership and voting rights
while the UK argued for assurances that its colonies would not be placed
under the UN control
- Furthermore, there was a disagreement over the voting system that would be
adopted into the Security Council which eventually bore the infamous “veto
power”
- Despite the differences, on April 25 1945, the United Nations Conference on
International Organisation convened and produced the final Charter of the
United Nations
- The UN charter was unanimously adopted and signed on June 26 and
officially promulgated on October 24 1948
FUNCTION AND STRUCTURE
- The UN has 6 main divisions which are:
a) The general assembly
i) The General Assembly is the main deliberative organ of
the United Nations. It is composed of representatives
from all Member States, each of which has one vote
b) Security Council
i) Under the Charter, the Security Council has primary
responsibility for the maintenance of international peace
and security. It has 15 Members, and each Member has
one vote. Under the Charter, all Member States are
obligated to comply with Council decisions
ii) The issue with the veto power is that all 5 members
have their own agenda.
iii) The power conferred unto these 5 permanent states were
intended to aid global issues brought up during
discussions and debates within the general assembly
iv) However, these empowered states rather than using
their powers for the general welfare and peace of the
world, they use it for their own economic or political
gain
v) For example, the US has used their veto power during p
c) Economic and Social Council
i) A founding UN Charter body established in 1946, the
Economic and Social Council (ECOSOC) is the place
where the world’s economic, social and environmental
challenges are discussed and debated, and policy
recommendations issued
d) Trustee Council
i) The Trusteeship Council was established to provide
international supervision for 11 Trust Territories and to
make sure that adequate steps were taken to prepare the
Territories for self-government or independence
e) International Court of Justice
i) The International Court of Justice is the principal
judicial organ of the United Nations. The Court is
charged with settling legal disputes between States and
giving advisory opinions to the United Nations and its
specialized agencies
f) Secretariat
i) The UN Secretariat, consisting of staff representing all
nationalities working in duty stations all over the world,
carries out the day to day work of the Organization. The
Secretariat services the other principal organs of the
 United Nations and administers the programmes and
policies established by them
EFFECTS OF THE UN
- Today there are 193 members of the United Nations and 2 non-
member observers which are Holy See and the State of Palestine
- Since the establishment of the United Nations, it has brought about
many instrumental changes to the implementation and propagation of
human rights at a global scale
- During WWII, the Allies had adopted the Four Freedoms (freedom of
speech, religion, from fear and want) as their basic war aims
- The establishment of the UN Charter had been intended to reaffirm
faith in fundamental rights and encouraging its members to promote
basic principles of basic rights for all persons regardless of social
stratification, religious backgrounds, nationality and so on
- However, the atrocities witnessed after the Nazi Regime during WWII,
the members conseded that the Charter did not sufficiently define the
principles of rights that it refers to
- This was the catalyst that urged the necessity of a declaration of human
rights
- The Universal Declaration of Human Rights was adopted by the UN
General Assembly on 10 December, 1948 at their 3rd session
- The UDHR contains 30 Articles and a preamble
- Some scholars argue that the UDHR has been invoked by many of it
state members for some 70 years therefore it shall be incorporated into
international customary law, jus cogens
- However, in the case of Sosa v Alvarez-Machain where the US
Supreme Court “does not of its own force impose obligations as a
matter of international law”
- This decision from the US Supreme Court gives the interpretation that
the UDHR is merely recognised as a declaration and has no legally
binding effect on state members
- The Declaration serves as the basic platform and instigator for the
propagation of fundamental rights that are inclusive to all peoples and
puts moral and ethical pressure on its state members to amend their
laws or establish doctrines that are compliant to the Declaration’s
provisions
- Upon adoption of this international Declaration, the reception of it was
split. Some scholars praised the declaration as a stepping stone toward
a brighter future in the implementation and understanding of human
rights
- Prominent figures like Charles Malik defined the legal document as an
“international document of the first order of importance" as well as
Pope John Paul II who claimed that the Declaration was"one of the
highest expressions of the human conscience of our time” and
 Marcello Spatafora stated that the legal document "placed human
rights at the centre of the framework of principles and obligations
shaping relations within the international community."
- Although, the reception for some was positive, other organisations
differed
- Many of these organisations such as the American Anthropological
Association criticised the document during the drafting process as it
defined universal human rights from a Western perspective thus,
risking its status of universality as Asian, Middle-Eastern and African
countries may find the provisions in contradiction with their beliefs
and cultures
- The AAA also proposed notes of consideration for the drafters from
the perspective of cultural relativism

What measures did the UN take in terms of human rights?

- Since the Universal Declaration of Human Rights was adopted in 1948, the UN
general assembly drafted two treaties for a more binding approach toward its
members
- The twin covenants International Covenant of Civil and Political Rights (ICCPR) and
the International Covenant of Economic, Social and Cultural Rights (ICESCR)
- The twin covenants were drafted as international treaties thus, possessing legally
binding qualities
- ICCPR
Are these measures effective today and has the UN been fundamental in helping states
that have been oppressed?
- The UN has been effective in passing legislation and enforcing their State members to
adhere to their principles and treaties
- However, in the formation of the UN the permanent members of the Security Council
pose major threats in the growth and progress of international human rights
- The permanent members of the Security Council have a special privilege known as
the veto power, this allows these members to oppose any action proposed during the
proceedings of the general assembly
- For instance, the Soviet Union vetoed
- US and Israel
- China against North Korea

What has been the UN’s influence in Malaysia?

Rome Statute
- Malaysia acceded the document but reversed their commitment after the backlash
faced by the Conference of Rulers as they were not consulted before accession
- The Cabinet of the present government formed consensus to accede the rome statute
- However, the Johor Crown Prince Tunku Ismail stated in a “tweet” that if Malaysia
accedes the Rome statute the position of the Rulers shall be compromised and if so
there may be an orchestrated war crime to see the fall of the monarchy in the country
 - Meanwhile, the Minister of Foreign Affairs, Saifuddin Abdullah, stated that the
statement raised about the stability and immunity of the Rulers will not be challenged
is Malaysia accedes the ICC and that the Cabinet came to consensus after determining
their position
- He further went on to state that

What is Malaysia’s position on human rights?

A Comparison Between The Echr And The Federal Constitution

A Comparison Between The Udhr And The Federal Constitution

International law cannot override the supreme constitution of sovereign states. Section 4(4) of
the Human Rights Commission of Malaysia Act 1999 which allows regard to be had to the
UDHR 1948 to the extent that it is not inconsistent with the Federal Constitution: “(4) For
the purpose of this Act, regard shall be had to the Universal Declaration of Human Rights
1948 to the extent that it is not inconsistent with the Federal Constitution.” In case of conflict
between international norms and national rules, courts must adopt the rule that national law
prevails.

Some of Our Courts’ Decisions On Human Rights Issue

The case of

Loh Kooi Choon v Government of Malaysia

- In which the Federal Court turned down the argument that the Federal Constitution, as
the supreme law of the land, cannot be inconsistent with itself. In the said case,
Parliament amended Article 5(4), denying the right to production before a magistrate
for persons detained under restrictive residence law. The said amendment was given
retrospective effect until Independence Day. From the court’s decision, it would look
as if the safeguard against retrospective laws is subject to many requirements and
sometimes, it’s better to just ignore fundamental concepts.

Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor

- The order of detention stated few grounds on which the supposed detainee was
apprehended with the word ‘or’ and not ‘and’ in between. The court held that the
 statement in regards to the grounds in the alternative form denied the detainee the
right to know the reason for his arrest, a constitutional right, for the record. The
decision of the court was in line with the Article 5(3) of the Constitution. The “public
interest” interpretation of Article 5(3) of the Federal Constitution in Ooi Ah Phua in
which the court held that the constitutional right to legal representation can be
postponed pending police investigation.

Teoh Eng Huat v Kadhi Pasir Mas

- The “wider interest of the nation” prevailed over a minor‟s right to religion
guaranteed by Article 11. In Hajjah Halimatussaadiah v PSC the court subjected a
public servant‟s claim of a religious right to wear purdah at the workplace to the need
to maintain “discipline in the service”. It is in this regard that the recent decision of
the Federal Court in

Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan

- Should be seen as a setback in the development of constitutional rights and personal

liberty in Malaysia. It is not the immediate decision (that denied the litigant the right
to practiSe his profession in Sabah without immigration interference) that is of
concern. It is the interpretative approach and the broader pronouncements as regards
the constitutional rights afforded by Article 5, and thereby Article 8 that is seen as a
throw-back to the constitutional thinking of the yesteryears. In the result the Federal
Court overruled a developing jurisprudence in the Court of Appeal of a rights-based
interpretation of the Constitution contained in a trilogy of cases namely,

Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidik & Anor

- The genesis was in Tan Tek Seng’s case. It was concerned with procedural fairness
and the constitutional rights of a civil servant facing dismissal. G Sri Ram JCA
speaking for the Court of Appeal posited that ‘life’ under Article 5 meant more than
mere existence. He said: “They (Judges) should, when discharging their duties as
interpreters of the supreme law, adopt a liberal approach in order to implement the
true intention of the framers of the Federal Constitution. Such an objective may only
be achieved if the expression “life” in art 5(1) is given a broad and liberal meaning.
Adopting the approach that commends itself to me, I have reached the conclusion that
the expression “life” appearing in Art 5(1) does not refer to mere existence. It
incorporates all those facets that are an integral part of life itself and those matters
which go to form the quality of life. Of these are the rights to seek and be engaged in
 lawful and gainful employment and to receive those benefits that our society has to
offer to its members. It includes the right to live in a reasonably healthy and pollution
free environment. For the purposes of this case, it encompasses the right to continue
in public service subject to removal for good cause by resort to a fair procedure.”

The courts are interpreting the word “life” in Article 5 to include the right to livelihood.
Employment is, therefore, a fundamental right within the expression of Article 5(1).

Nor Anak Nyawai v Borneo Pulp

- It was held that native customary rights can be considered as “right to livelihood”.
“Life” includes reputation and deprivation of reputation would be a violation of
Article 5(1)

Lembaga Tatatertib Perkhidmatan v Utra Badi a/l K Perumal

- The right to equal protection under the law in Article 8 implies a fundamental right to
procedural due process. Amongst other things, this entitles a person to know the
reasons for an administrative decision.

Hong Leong Equipment v Liew Fook Chuan

- Gopal Sri Ram JCA restricted this duty to situations when fundamental rights
enshrined in Part II of the Constitution were adversely affected.

Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah

- The learned judge extended the duty to all cases where the rights of a person are
jeopardized by a public law decision.

Federal Court case of:

Sivarasa Rasiah v. Badan Peguam Malaysia & Anor

- Article 5(1) of the Constitution provides that “No person shall be deprived of his life
or personal liberty save in accordance with law.” According to Gopal Sri Ram FCJ (as
then he was) in the Sivarasa case, the right to personal liberty includes the right to
privacy.
- Notwithstanding the recognition of such right, such right may not be enforced by an
individual against another private individual for the infringement of rights of the
private individual as constitutional law (substantive or procedural) will take no
cognisance of it as held in Beatrice Fernandez v. Sistem Penerbangan Malaysia &
Anor [2004] 4 CLJ 403.
High Court cases of:

Ultra Dimension Sdn. Bhd. v. Kook Wei Kuan & Lew Cher Phow @ Lew Cha Paw & 11
Ors v. Pua Yong Yong & Anor

- Had held that invasion or violation of privacy is not a recognized tort or a cause of
action in Malaysia. In the former case, the Plaintiffs failed in their action for invasion
of privacy against the Defendant for taking a photograph of a group of kindergarten
pupils, including the Plaintiffs child, at an open area outside the kindergarten and
published it in two local newspapers. Faiza Tamby Chik J held that right to privacy is
not recognized under the Malaysian law since it is not recognized under English
common law based on the decision in Kaye v. Robertson. The learned Judge further
cited the definition of privacy right as ‘right to be alone and live free from all
intrusion by others’ is different from the phrase ‘life’ and ‘personal liberty’ in Article
5 of the Constitution. Therefore, it was concluded that rights to privacy do not come
under the purview of Article 5 of the Federal Constitution. As for the latter case, the
Plaintiffs failed in their application to restrain the Defendants from having a CCTV
which faces their house and to remove the same.[Not under A.5]

Dr Bernadine Malini Martin v. MPH Magazines Sdn Bhd & Ors

- The Court again stated that invasion of privacy is not an actionable wrongdoing. The
Court of Appeal judgement of Maslinda Ishak v. Mohd Tahir Osman & Ors [2009]
6 CLJ 653 however gave some light to the tort of invasion of privacy.

Lee Ewe Poh v Dr. Lim Teik Man & Anor

- Is the first reported Malaysian case that recognizes the invasion of privacy as an
actionable tort. In this case, the doctor had taken picture of the Plaintiff’s anus during
a medical procedure without informing the Plaintiff. The doctor’s reason for taking
such picture was for medical purpose and claimed that taking of photographs during
the course of the medical procedure without the consent of the patient is an acceptable
practice.
- “The learned trial judge found for Maslinda Ishak against the 1st defendant but not
against the other respondents for whom she appealed. The Court of Appeal allowed
her appeal and held the respondents to be jointly and severally liable for the wrongful
act of their agent as well as vicariously liable. Although Maslinda Ishak’s case is not
directly on point, the fact remains that the High Court in so finding has departed from
the old English law that invasion of privacy is not an actionable tort and our Court of
 Appeal indirectly, though this issue was not canvassed, seems to endorse such cause
of action when the pleadings were specifically referred to and C.A. did not overrule
invasion of privacy as a cause of action on ground that it is not one in line with the
English law. Since such a cause of action has been accepted as a cause of action
under our common law, it is thus permissible for a plaintiff to found his/her action on
it. Drawing an analogy of this Court of Appeal case, I am inclined to hold the view
that since our courts especially the Court of Appeal have accepted such an act to be a
cause of action, it is thus actionable. The privacy right of a female in relation to her
modesty, decency and dignity in the context of the high moral value existing in our
society is her fundamental right in sustaining that high morality that is demanded of
her and it ought to be entrenched. Hence, it is just right that our law should be
sensitive to such rights. In the circumstances, Plaintiff in the instant case ought to be
allowed to maintain such claim.”
- The right of privacy at this moment is only in respect of women’s modesty. It will be
interesting to see whether how our right to privacy would extend to since at this
moment we have the Personal Data Protection Act 2010.

Omar bin Daud & Anor v Public Prosecutor

- The accused was asked to explain why he had elected to say nothing when he was
cautioned. In disallowing the question Edgar Joseph Jr J said:
- ‘I disallowed that question because, in my view, in electing to remain silent the
accused was merely exercising a legal right and therefore no inference of guilt could
be drawn against him.’
- It’s reinforced in the case of Public Prosecutor v Mohd Fahmi bin Hamzah [2002] 6
MLJ 340, Augustine Paul J (as he then was) commented that:
- ‘The requirement that the Court must be satisfied that a caution was administered ‘…
in the following words or words to the like effect …’ is a statutory direction to the
Court to ensure that the prescribed caution has been administered. This means that
there must be evidence of the caution that was administered. In the absence of such
evidence the Court will not be able to rule whether the prescribed caution or words to
the like effect were administered. Thus the actual words of the caution that was
administered must be adduced in evidence. This is significant as the caution
enshrines certain in-built rights like, for instance, the right of silence. It is therefore
important to ensure that these rights have been properly communicated to an accused
person.’[Emphasis added]
In Beatrice a/p A.T. Fernandez v Sistem Penerbangan Malaysia

- A decision handed down in March this year, the appellant did not resign after being
pregnant contrary to a term stipulated in the collective agreement (CA) of the air
carrier, which requires all stewardesses of a particular category to resign on becoming
pregnant. The Federal Court in refusing leave for the appellant to appeal a Court of
Appeal decision dismissing her application ruled that the term in the CA did not
infringe Art. 8 inter alia on the technical ground that the amendment to Art. 8 (2) to
include gender was made in 2001, the appellant being dismissed in 1991.Further the
court said, “..in construing Article 8 of the Federal Constitution, our hands are tied.
The equal protection clause in Clause (1) of the Article 8 thereof extends only to
persons in the same class. It recognizes that all persons by nature, attainment,
circumstances and the varying needs of different classes of persons often require
separate treatment. Regardless of how we try to interpret Art. 8…we could only come
to the conclusion that there was obviously no contravention.”

Article 10 of the Federal Constitution guarantees every citizen with the right to freedom of
speech and assembly. Judge Chang Min Tat in

Madhavan Nair & Anor v Public Prosecutor

- Explained that an attack on the enforcement of the restrictions can only succeed if the
condition itself is seen as an infringement on the freedom of speech within limits set
on this fundamental right in clauses (2), (3) and (4) of Article 10 of the Federal
Constitution. While acknowledging that the wording of (2) of Article 10 was broad,
he ruled that “it is not within the competency of the courts to question the necessity or
expediency of the legislative provision.”

Chai Choon Hon v. Ketua Polis Daerah, Kampar and Government of Malaysia

- Is an important case because it means that the government’s power to regulate

meetings and events is not absolute. The rights to have peaceful assembly have been
recently being upheld in recent court cases.

The fundamental right of association under Article 10 of the Federal Constitution came for
consideration by the Federal Court in the case of

Dewan Undangan Negeri Kelantan v Nordin Salleh

- In that case, the State Legislature of Kelantan had passed an amendment to the State
Constitution which provided for an anti-hopping law. Under the amendment, it was
 provided that any members of the State Legislature who is a member of a political
party, resigns or is expelled from or ceases to be a member of such party, he shall
cease to be a member of the State Legislature and his seat shall be vacant. The
amendment was challenged as being contrary to the right of association in Article 10
of the Federal Constitution. The Federal Court in declaring the amendment as void
being ultra vires the Federal Constitution, accepted the liberal principles of
constitutional interpretation and held that any state action which makes the exercise of
human rights ineffective or illusory would be unconstitutional and thus void. This is a
very important decision in so far as the right of association is concerned.
- Malaysian Article 12 on right to education springs from the rights of life which stated
inter alia “No person shall be deprived of his life or personal liberty saves in
accordance with law”, and personhood of individual being protected, being
safeguarded against any unlawful actions that infringes it or taking it away from that
person. No one is to be dismissed save for fair and reasonable cause.

It can be explained again in:

Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor

- The Court of Appeal opined that: “…. the expression” life” appearing in Article 5
does not refer to mere existence. It incorporates all those facets that are an integral
part of life itself and those matters, which go to form the quality of life.”

In Jakob Renner V. Scott King, Chairman of Board of Directors of the International

School of Kuala Lumpur

- In this case, a mentally-abled handicapped student was denied entry into the
defendant’s school due to the fact that the school may not be suitable and conducive
to the learning process of the student plaintiff.
- Low Hop Bing J held that:
- ‘..In my view, the principle is that where the overriding educational needs of children
were likely to be threatened, this would necessitate the tilting of the balance of justice
in favor of providing continuance of education for the affected children. This is
particularly so in Malaysia which is already steadily moving towards a regional
center for educational excellence and is indeed a role model to the developing
countries of the world… I agree with the submission advanced for the plaintiffs that
to deny the plaintiff’s education because he is physically handicapped is undoubtedly
running against the strong current of providing education to the younger generation,
 especially as we are moving towards the new millennium. A wheel chair bound child
should not, ipso facto, be denied his basic rights to and needs for education. t is not
out of place and indeed it is so often illustrated as a universally accepted example
that one of the greatest living scientists of our age Professor Stephen Hawkins owed
his origin to the exercise of his basic rights to and the need for education. This has
made it possible for him to occupy the Newton Chair as Professor of Mathematics at
the University of Cambridge.”
- The right to education is coexistence with the right to life. Education means
knowledge and knowledge itself is power. The pursue of knowledge is of more
importance to the public than all the property of all the rich men in the country. The
right to education, therefore, is concomitant to the fundamental rights enshrined under
Part II of the Malaysian Constitution. The Government is under a constitutional
mandate to provide educational institutions at all levels for the benefit of the citizens.
- Art 13 of the Federal Constitution provided the rights to property. Art 13(1) stated
that no person shall be deprived of property save in accordance with law; Art 13(2)
stated that the government would provide for adequate compensation if the property
were compulsory acquitted by the government. It seems that the constitution gives the
people rights to own property such as land but it is also subjected that the government
may take the land from the ownership of the people and merely gives adequate
compensation in return under the Land Acquisition Act.

The 9 Articles which form Part II of the Federal Constitution are found 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.

Conclusion
Rule of Law cannot exist without a transparent legal system, the main components of which
are a clear set of laws that are freely and easily accessible to all, strong enforcement
structures, and an independent judiciary to protect citizens against the arbitrary use of power
by the state, individuals or any other organization. As what said by the Theuns Viljoen, CEO,
LexisNexis Pacific, “There can be no Rule of Law unless there is access to the basic sources
of law.”
We can foresee that with the more united Malaysian, we have not reached the stage where
liberty has died in the heart of the average Malaysian. As has been well stated by our former
Chief Justice Tun Mohammed Salleh bin Abas while making an observation on the
relationship between government policies, the legislative process and the role of the judiciary
in Malaysia:

“In a stable society, law is developed from case to case by judicial method. This method of
development is often slow and imperceptible, but in a developing society which is embroiled
with so many challenges and activities, the development by this slow process is hardly
suitable. So long as the law is a tool for the Government and so long as the Government
requires law in order to formulate and implement its policies, legislation for reason of
expediency is an important instrument of government”