HUMAN RIGHTS

History

Introduction

Human rights literally means the universal rights inherent to all human beings, no matter what
our nationality, place of residence, sexual category, age, ethnicity, colour, religion we are, or the
language we use. Everyone shall be equally entitled to our human rights with no discrimination.

According to the Oxford Power Dictionary (1993), it defines human rights as the fundamental
freedom that all people should have. In other words, human rights are aimed for human beings to
assure their basic needs and are also the moral or ethical privileges of every human developed
out of a sense of pride.

Human rights is a set of standards that guarantee a life befitting a rational human being, are basic
and minimum standards without which people can’t live in dignity, guarantee the development
and wholeness of our being, and are the “Foundation of freedom, justice, and peace in the
world.”

Hence, Human rights must be appropriate and adequate to the basic needs of the people. Being
aware of our human rights comes with the responsibility in developing and protecting our dignity
and that of others. Human rights provide a framework for action where people are empowered to
change their lives and the society.

4 CHARACTERISTICS:

- inherent (essential): People have human rights because they are human beings. It is their
birthright and are to be enjoyed by all people simply by reason of their humanity.
- Universal: They apply to all people regardless of status, race, gender or other distinction.
Equality is one of the basic ideas in relation to human rights.
- indivisible (full range): All people are entitled to all rights: civil, political, economic,
social and cultural. No one right is better than another.
- inalienable (cannot be taken away but it can be limited)
- INTERDEPENDENT: People’s enjoyment of one human right is affected by their
enjoyment of all others; civil and political right enable the better enjoyment of economic
and social rights; economic and social rights enable the better enjoyment of civil and
political rights.
Types of human rights

1. Civil and political rights

- First generation rights as they were the first to be recognized historically.
- Civil rights are entitlements belonging to all human and are to do with being a
free citizen of a nation (eg. Freedom of thought and religion)
- Political rights are entitlements belonging to all human and are to do with full
participation in government (e.g the right to vote)
- Civil and political rights are to both protect the individual from the arbitrary
exercise of power by the state.
- These rights are set out in articles 3 to 21 of UDHR 1948 and International
Covenant on Civil and Political Rights (ICCPR) 1966.

2. Economic, social and cultural rights

- Second generation rights.
- Economic rights are concerned with material and cultural wellbeing of people,
production and management of material of the necessities of life.
- Cultural rights are the rights which assist in preserving and enjoying one's cultural
heritage.
- Social rights are rights that give people security as they live and learn together,
such as rights involving schools and other institutions.
- These rights are set out in articles 23-27 of the UNDHR 1948, International
Covenant on Economic, Social and Cultural Rights (ICESCR) 1966

3. Environmental rights, peace rights and the right to self-determination

- Third generation HR emerged in recent years.
- They do not necessarily belong to the individual, as do other human rights, but
rather to peoples as a whole. These rights are COLLECTIVE rather than
INDIVIDUAL in nature.
- Collective rights: belong to a group of people (for example the right to continued
survival of a race of people). For examples, the prohibition of genocide. The right
to self-determination is the collective right of peoples to govern themselves. Some
rights of individuals are also collective in their nature, such as the right to
freedom of association and freedom of religion.
- The status of third generational HR in international law is not yet clear, though
some have been recognized at least partially in various treaties and declarations.
Modern Development

1. Universal declaration of human rights

The Universal Declaration of Human Rights (UDHR) is a historic document that was adopted by
the United Nations General Assembly in 1948. It consists of 30 articles affirming an individual's
rights which have been elaborated in various international treaties and other laws. The purpose of
adopting UDHR is to define the words “fundamental freedoms” and “human rights”, which is
binding on all member states. It is not a treaty but a declaration which does not have legal
binding effect. It is advised that the Declaration constitutes an obligation for the members of the
international community to all persons in 1968. Moreover, it has influenced the constitution of
many States including Malaysia Federal Constitution, in which Malaysia became independent
due to decolonisation.

In 1966, the United Nations General Assembly adopted two separate covenants, The
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR), which both intend to provide a legally binding
codification of the rights listed in the Declaration. Both covenants were initially drafted in 1954
as a single document. However, they were opened for signature and ratification separately, in
1966, and came into force in 1976, in virtue of Art.49 of ICCPR and Art.27 of ICESCR
respectively, during the Cold War. By comparing the UDHR and the twin covenants, there are
some existing differences from various aspects.

Firstly, there are some rights provided under UDHR but are not incorporated to ICCPR and
ICESCR, and vice versa. Under UDHR, there are rights to asylum under Art.14, right to own
property under Art.17, right to social security under Art.22, right to proper social order under
Art.28, which are not stated in ICCPR and ICESCR. Under the two covenants, there are right to
self-determination under Art.1 of ICESCR, right of a detainee under Art.10(1) of ICCPR, right to
free from imprisonment due to violation of contractual obligations under Art.11 of ICESCR,
right to special protection of children under Art.24 of ICCPR, right of minority under Art.27 of
ICCPR, which are not proclaimed in UDHR. From this, it could be seen that there are still
loopholes in both UDHR and twin covenants as some of the rights are not being guaranteed.
Thus, there are still rooms of improvement on both UDHR and twin covenants as cover up rights
are yet to be guaranteed.

Secondly, UDHR and twin covenants are different in terms of their binding effects. UDHR is
merely a Declaration in which it is not necessarily binding to the member’s States. It has listed
out various types of human rights but some countries refuse to follow the listed rights guaranteed
under UDHR as those rights might contradict with their local laws. Some countries have their
own legislations which need not necessarily refer to international human rights. In contrast, the
twin covenants have the legal binding effect since the Articles under both ICCPR and ICESCR
have clearly provided power of ratification which means have made it necessarily binding. From
this, it is clearly shown that there are various universal human rights in UDHR but unfortunately,
do not make them compulsory to be followed.

Thirdly, the state parties implementing UDHR could not enjoy the privilege to seek for advice
from the Human Right Committee (HRC) as those for twin covenants. For UDHR, the HRC does
not have any direct obligations to aid UDHR when it finds any difficulties in implementing the
Declaration, unless that member State seeks for international aid and services. In contrast, HRC
is responsible for all the matters relating to the implementation of the twin covenants as both
covenants have vividly stated under the Articles. From this, we could see the state parties
implementing twin covenants may be benefitted from HRC when facing any difficulties, but not
those for UDHR. Fourthly, if an individual’s right under UDHR is infringed, HRC will not
entertain any complaint since it is not within its responsibilities as under the twin covenants.
However, HRC will only entertain a complaint made under ICCPR or ICESCR but with
conditions that the rights of the person are infringed in the state parties which have recognized
ICCPR and ICESCR. Aids will be provided if necessary to the victim as this has stated in both
covenants.

2. Importance of UDHR

The UDHR is among the most important documents of the 20th century. It has been translated
into 337 different languages. It has become a touchstone for actions by governments, individuals,
and nongovernmental groups. It has been ratified by every country in the world. Practically no
other international instrument can claim this honor. In short, the UDHR has acquired a moral and
political significance matched by few documents

It provides both a guide to present action and an evolving set of ideas for future implementation
at the national level. Increasingly, the UDHR’s principles have been embodied in what states do
and it serves as the foundation for the International Bill of Rights and several other crucial
human rights agreements. And, not least, the UDHR has proven a remarkably flexible foundation
for a continued broadening and deepening of the very concept of human rights.

- Human rights ensure people have basic needs met. Everyone needs access to medicine,
food and water, clothes, and shelter. By including these in a person’s basic human rights,
 everyone has a baseline level of dignity. Unfortunately, there are still millions of people
out there who don’t have these necessities, but saying it’s a matter of human rights allows
activists and others to work towards getting those for everyone.

- Human rights protect vulnerable groups from abuse. The Declaration of Human Rights
was created largely because of the Holocaust and the horrors of WII. During that time in
history, the most vulnerable in society were targeted along with the Jewish population,
including those with disabilities and LGBT. Organizations concerned with human rights
focus on members of society most vulnerable to abuse from power holders, instead of
ignoring them.

- Human rights allow people to stand up to societal corruption. The concept of human
rights allows people to speak up when they experience abuse and corruption. This is why
specific rights like the right to assemble are so crucial because no society is perfect. The
concept of human rights empowers people and tells them that they deserve dignity from
society, whether it’s the government or their work environment. When they don’t receive
it, they can stand up.

- Human rights encourage freedom of speech and expression. While similar to what you
just read above, being able to speak freely without fear of brutal reprisal is more
expensive. It encompasses ideas and forms of expression that not everybody will like or
agree with, but no one should ever feel like they are going to be in danger from their
government because of what they think. It goes both ways, too, and protects people who
want to debate or argue with certain ideas expressed in their society.

- Human rights give people the freedom to practice their religion (or not practice any).
Religious violence and oppression occur over and over again all across history, from the
Crusades to the Holocaust to modern terrorism in the name of religion. Human rights
acknowledges the importance of a person’s religion and spiritual beliefs, and lets them
practice in peace. The freedom to not hold to a religion is also a human right.

- Human rights encourage equal work opportunities. The right to work and make a living
allows people to flourish in their society. Without acknowledging that the work
environment can be biased or downright oppressive, people find themselves enduring
abuse or insufficient opportunities. The concept of human rights provides a guide for how
workers should be treated and encourages equality.

- Human rights give people access to education. Education is important for so many
reasons and is crucial for societies where poverty is common. Organizations and
governments concerned with human rights provide access to schooling, supplies, and
 more in order to halt the cycle of poverty. Seeing education as a right means everyone
can get access, not just the elite.

- Human rights protect the environment. The marriage between human rights and
environmentalism is becoming stronger due to climate change and the effects it has on
people. We live in the world, we need the land, so it makes sense that what happens to
the environment impacts humanity. The right to clean air, clean soil, and clean water are
all as important as the other rights included in this list.

- Human rights provide a universal standard that holds governments accountable. When the
UDHR was released, it had a two-fold purpose: provide a guideline for the future and
force the world to acknowledge that during WWII, human rights had been violated on a
massive scale. With a standard for what is a human right, governments can be held
accountable for their actions. There’s power in naming an injustice and pointing to a
precedent, which makes the UDHR and other human right documents so important.

3. Differences of ICCPR and ICESCR -

https://www.studocu.com/my/document/multimedia-university/human-rights-law/
differences-betwen-iccpr-and-icescr/10787745

4. significance of the (ICCPR) and the (ICESCR) in international human rights law

- The ICESCR is part of the Declaration on the Granting of Independence to Colonial

Countries and Peoples, International Bill of Human Rights, along with the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights(ICCPR), including the latter's first and second Optional Protocols
- First Optional Protocol ICCPR- an international treaty establishing an individual
complaint mechanism for the
- Second Optional Protocol ICCPR- aiming at the abolition of the death penalty- created on
15 December 1989 and entered into force on 11 July 1991. As of April 2014
- ICCPR is a multilateral treaty adopted by theUnited Nations General Assembly on 16
December 1966, and in force from 23 March 1976. It commits its parties to respect the
civil and political rights of individuals, including the right to life, freedom of religion,
freedom of speech, freedom of assembly, electoral rights and rights to due process and a
fair trial.
- The ICCPR is monitored by the United Nations Human Rights Committee which reviews
regular reports of States parties on how the rights are being implemented. States must
report initially one year after acceding to the Covenant and then whenever the Committee
requests (usually every four years). The Committee normally meets in Geneva and
normally holds three sessions per year.
 5. Can the human rights policies and practices in Malaysia improve if Malaysia becomes a
State party to ICCPR and ICESCR? -
https://www.studocu.com/my/document/multimedia-university/human-rights-law/human-
right-tutorial-1/12115726

6. Should malaysia rectify ICCPR and ICESCR?

-https://www.studocu.com/my/document/multimedia-university/human-rights-law/
differences-between-udhr-iccpr-and-icescr/12109379

Should Malaysia ratify these laws ICCPR and International Covenant on Economic, Social
and Cultural Rights?
Yes.

There are many reasons why ICCPR should be ratified, among them are:
- A19 ICCPR states that all persons have a right to seek, receive and impart information
and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.
- In an online news article by malaysiakini, on World Press Freedom Day 2017,
SUHAKAM emphasizes that right to freedom of opinion and expression are crucial in the
development of a person and is the foundation of a democratic society.
- In another online news article by Aljazeera, Rachel Chhoa-Howard, researcher for
Amnesty International stated that the government’s response to the dissatisfaction of the
public due to the political instability and handling of the covid-19 pandemic, has been, by
limiting freedom of speech. In the past few weeks, this limitation has been extended to
peaceful assembly as well. In the ongoing political instability in our country, authorities
have exerted repressive laws to investigate or arrest not only activists, journalists and
protesters but also members of the political opposition and the general public to put an
end to the disagreement.
- The new government should commit to respecting the rights to free speech and peaceful
assembly in Malaysia.
- The new government should end these and other efforts to investigate and prosecute
people simply for exercising their civil and political rights. For example:
-The authorities are investigating the creators of a short animated film depicting the abuse
one boy said he suffered in police custody. On July 23, the police called in for
questioning Anna Har, the filmmaker, and Amin Landak, the cartoonist, and raided the
offices of Freedom Film Fest, which screened the film. Four participants in a post-film
forum, including the executive director of the human rights group Suara Rakyat
Malaysia, were also called in for questioning. All six are being investigated for criminal
defamation and other violations of the penal code, and violation of section 233(1)(a) of
the Communications and Multimedia Act, a broadly worded provision that criminalizes
 online content that “is obscene, indecent, false, menacing or offensive in character with
intent to annoy, abuse, threaten or harass another person.”
- If Malaysia ratified the ICCPR, which is legally binding on all state parties upon entry,
this would curb the issue of freedom of speech and expression in our country. We
wouldn’t have to rely on the discretion of the prime minister to decide on this matters, as
there will be a higher law, i.e. ICCPR that will ensure the protection of the citizen’s
rights.
-

ICCPR
The Universal Declaration of Human Rights is an ideal standard held in common by nations
around the world, but it bears no force of law. Thus, from 1948 to 1966, the UN Human Rights
Commission’s main task was to create a body of international human rights law based on the
Declaration, and to establish the mechanisms needed to enforce its implementation and use. The
Human Rights Commission produced two major documents: the International Covenant on Civil
and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural
Rights (ICESCR). Both became international law in 1976.

There are several fundamental rights that had been enshrined in ICCPR, which might not be
present under the Federal Constitution. Article 1 of ICCPR gives the right of self-determination.
By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development. All peoples may, for their own ends, freely dispose
of their natural wealth and resources. Furthermore, in our FC there had been no prohibition of
torture and degrading treatment. Under Article 7 of ICCPR no one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation. Article 10 of ICCPR gives the
right of a detained person, although the right of a detained person is given under Article 5(2), (3)
and (4) of FC, it does not protect the detained person from any form of torture and violence.
Whereas in Article 10 of ICCPR, it is stated that all persons deprived of their liberty shall be
treated with humanity and with respect for the inherent dignity of the human person. Another
absent right in our FC is to be free from imprisonment from debt. Article 11 of ICCPR states that
no one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
The right to privacy in Malaysia, although does exist according to the Federal Court case of
Sivarasa Rasiah v Badan Peguam Malaysia & Anor, in which it was stated that Article 5,
personal liberty extends to protect the right to privacy of a person. However, there has been a
lack of actionable right against someone who invaded your privacy. Article 17 of ICCPR, right
to privacy might be able to uplift the lack of actionable rights in Malaysia. In Article 20 of
ICCPR, there is prohibition of propaganda for war and of incitement to national, racial or
religious
hatred. Finally Article 27 governs the right of people belonging to the minorities to enjoy their
own culture, to profess and practise their own religion, or to use their own language.

Besides the aforementioned rights that are not present in our FC, our freedom of speech and
expression given under Article 10 had also been restricted by Federal laws like Printing, Presses
and Publication Act 1984 and Sedition Act 1948. Due to restrictions under Article 10(2)(a) and
also Article 4(2) which restrict questioning of necessity of the Act passed under Article 10(2)
which restricts the freedom of Article 10. By ratifying the ICCPR, draconian laws like PPPA and
Sedition Act might have to be gone as Article 19 had given the right to freedom of expression,
with only restriction necessary for respect of the rights or reputations of others or for the
protection of national security or of public order (ordre public), or of public health or morals.
HR in MAS

Intro

In Malaysia, the human rights for its citizens are protected under the Federal Constitution,
which is the supreme law of the country. They are vested in Article 5 to 13and these rights are
not absolute because they have restrictions or limitations that the citizens are bound to. The
Malaysian courts have a role to play, to protect the rights of the individual via the State and
between the States and the Federation. It ensures that State actions are within their allocated
authority including ensuring the rights and freedoms provided under the Federal Constitution are
not infringed.

- Article 5 (right to life)

In all collections of human rights over the world, rights to life and personal liberty are the most
precious among all. The deprivation towards it, will affect the whole structure of freedoms. Even
though there must be restrictions to the rights, the freedom should be as wide as possible. In
Malaysia, Article 5 of the Federal Constitution (FC) provides rights to liberty of the person;
however, some defects in it should be reform by adopting the principle of constitutionalism.

Malaysian law

Article 5 (1) of FC, can be divided into 2 limbs. First, “no person shall be denied his personal
liberty.” This limb protects every individual’s personal liberty. Person in this subsection refers to
all persons, not just citizens. It may even include artificial persons such as ships and aircraft
which law can be applicable towards it. While, personal liberty as interpreted in the case of
Aminah v Superintendent of Prison, as long as there is no arrest or detention, there is no
deprivation of life and personal liberty. This defines the narrowness of Malaysian law which
only refers to arrest and detention as a deprivation of liberty.

Secondly, the phrase, ‘save in accordance with law’ justified deprivation if law allows it to be.
The word ‘law’ can be interpreted differently. First, ‘law’ could mean any statutes passed by
parliament regardless of its reasonableness as long as it complies with the law making procedure.
Secondly, ‘law’ does not mean any law pass by parliament but it refers to a higher standard of
due process and natural justice which conform with the principle of constitutionalism.
Article 5 should be implied into statues and the principle must also be applied to preventive
detention laws under Article 149 and 150. As in Aminah’s case, Article 5 is meant to apply to
arrests under any law in force in the country. Besides, in Andrew s/o Tamboosamy v
Superintendent of Pudu Prison, Suffian LP states that, any form of detention does violate the
Article 5 and power given by law to detain must be interpreted strictly. However, in the case of
Kam Teck Soon v Timbalan Menteri Dalam Negeri, the court held Article 5 does not apply to
laws passed under Article 145 and 150.

Malaysian court decision regarding Article 5; it refers merely to enacted laws and not to general
concepts of law such as natural justice. As in Che Ani bin Itam v PP and PP v Lau Kee Hoo, the
mandatory life sentence under Sec. 4 Firearms (Increased Penalties) Act and the mandatory death
sentence under Sec. 57(1) of Internal Security Act (ISA) is not inconsistent to Article 5(1). Even,
Ajaib Singh in PP v Yee Kim Seng states that the court are obliged to administer the law as it is
found in statues book and whether it is morally right or wrong is a matter of parliament to decide

In comparison to the European Convention of Human Rights (ECHR), Article 1 of the 13th
Protocol abolishes death penalty. While Article 2 of the ECHR gives absolute right to life with
only 3 exceptions which results from the use of force (1) in defence of any person from unlawful
violence, (2) in order to prevent the escape of a person lawfully detained and (3) in action
lawfully taken for the purpose of quelling a riot. While, Article 5 only outlines 6 exceptions
where a person may be deprived of his liberty.

Article 5(2) of FC includes remedy of habeas corpus into the constitution and it applies even to
laws passed under Article 149 and 150. In Abdul Ghani Haroon, Hishamudin J states that, habeas
corpus is as important as not just legal rights but also as constitutional rights. Even if it is not
stated, the principle must be implied in the constitution. However, the Federal Court reversed the
decision and held that the rights to habeas corpus are not granted automatically. In Re Datuk
James Wong Kim Min it was stated that the provisions of the law allowing detention without
trial must be strictly interpreted and safeguards as law purposely provides for the protection of
any citizen. However, question on who bears the burden of proof that the detention is lawful as
stated by Hishamudin J is the for the detainer to justify, but Suffian J in Karam Singh the burden
can be discharge by simply producing order of detention as long it is issued in good faith and
was original.

When parliament passes a subversion law, it will suspend Article 5 automatically. By that, it
means the rights of life and liberty of a person are totally gone even though there is still Common
Law to protect the people’s right through habeas corpus. This is because it can only be
implemented on the procedural part. Besides that, parliament is more supreme than Common
Law as the ruling party in the lower house may use several methods to strike out the Common
Law such as the party whip system. This shows that the rights under Article 5 are destroyed by
Article 149 and 150 as any person who is suspected to cause enmity will be detain without trial.
In comparison, under Article 4 of ECHR states that, everyone who is deprived of his liberty shall
be entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily. This is contrary to our Article 5(2) where it states that only as soon as reasonable.
Besides, our FC does not provide in any part of the constitution rights to a fair trial as under
Article 6 of ECHR states that, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law

5(3).. 5(4)..

International law

The right to life is guaranteed under a number of international human rights instruments, as well
as under the constitutions of most countries of the world. It is generally accepted as being part of
customary international law. International law guarantees everyone the right to life, or more
exactly the right not to be arbitrarily deprived of one’s life.

The first document adopted by the General Assembly of the United Nations, shortly after the end
of the Second World War, is The Universal Declaration of Human Rights1 which proclaims that
all human beings are born free and equal in dignity and rights (art. 1). It is thus established a
common ideal that is to be accomplished by all the states in the world

- Art.3 UDHR
- Under Article 3 of the UDHR, life is a human right. This makes the death penalty our most
fundamental human rights violation.

- Art 6(1) ICCPR

- Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) provides:
Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life

- Art. 4 ACHR
- Art. 2 ECHR

Article 1 of the 13th Protocol abolishes death penalty.

Article 2 of the ECHR gives absolute right to life with only 3 exceptions which results from the
use of force (1) in defence of any person from unlawful violence, (2) in order to prevent the
escape of a person lawfully detained and (3) in action lawfully taken for the purpose of quelling
a riot.
Article 4 of ECHR states that, everyone who is deprived of his liberty shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily.

Article 5(2) of the ECHR where everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and of any charge against him.
However, the phrase ‘as soon as maybe’ depends on the facts of the case. As in Aminah’s case,
the phrase is read as ‘as soon as reasonable’.

Article 6 of ECHR states that everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.

(death penalty)

- In a resolution on capital punishment, the UN General Assembly in 1971 affirmed that

"in order fully to guarantee the right to life, provided for in article 3 of the Universal
Declaration of Human Rights, the main objective to be pursued is that of progressively
restricting the number of offences for which capital punishment may be imposed, with a
view to the desirability of abolishing this punishment in all countries”
- The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN
General Assembly in 1966, states in Article 6(2): "In countries which have not abolished
the death penalty, sentence of death may be imposed only for the most serious crimes". In
a general comment on Article 6 of the ICCPR, the Human Rights Committee established
under that treaty stated that "the expression 'most serious crimes' must be read
restrictively to mean that the death penalty should be a quite exceptional measure"
- In the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death
Penalty, adopted in 1984 (“ECOSOC Safeguards”), the UN Economic and Social Council
(ECOSOC) reiterated that the death penalty should be imposed only for the most serious
crimes and stated that the scope of these crimes “should not go beyond intentional crimes
with lethal or other extremely grave consequences”. There have been various specific
standards and statements about the crimes for which the death penalty should not be used.
- Article 4(4) of the American Convention on Human Rights (ACHR) states that the death
penalty shall not be inflicted "for political offences or related common crimes."
- The Human Rights Committee has stated that "the imposition ... of the death penalty for
offences which cannot be characterized as the most serious, including apostasy,
committing a third homosexual act, illicit sex, embezzlement by officials, and theft by
force, is incompatible with article 6 of the Covenant"
- The international standard of restricting the death penalty to the most serious crimes, in
particular to those with lethal consequences, is broadly reflected in practice. Most states
which continue to carry out executions today do so only for murder, although they may
 retain the death penalty in law for other crimes. Moreover, the rate of executions in most
such countries has declined to a point where it representes only a tiny fraction of the
number of reported murders.
- Procedural safeguards to be followed in all death penalty cases have been set forth in
Article 6 of the ICCPR and Article 4 of the ACHR and reiterated and elaborated upon in
the ECOSOC Safeguards and other UN resolutions. They include all international norms
for a fair trial, including the right to appeal to a higher court, and the right to petition for
clemency.
- Although the safeguards exist in principle in many countries which retain the death
penalty, they are often not fully observed in practice, and even where an effort is made to
observe them, the use of the death penalty often remains arbitrary. Factors such as
inadequate legal aid and prosecutorial discretion result in some defendants being
sentenced to death and executed while others convicted of similar crimes are not. The
safeguards have failed to prevent the arbitrary use of the death penalty or to preclude its
use against people innocent of the crimes of which they were convicted.

- freedom of expression in Malaysia

Freedom of expression is essential to the democracy and the democratisation process. It forms a
central pillar of the democratic framework through which all rights are promoted and protected,
and the exercise of full citizenship is guaranteed. A robust democratic framework in turn, helps
create the stability necessary for society to develop in a peaceful and relatively prosperous
manner. Through freedom of expression, politics can unfold in an unfettered and constructive
manner.

Free expression allows people to demand the right to health, to a clean environment and to
effective implementation of poverty reduction strategies. It makes electoral democracy
meaningful and builds public trust in administration. Access to information strengthens
mechanisms to hold governments accountable for their promises, obligations and actions. It not
only increases the knowledge base and participation within a society but can also secure external
checks on state accountability, and thus prevent corruption that thrives on secrecy and closed
environments.
Freedom of speech is acknowledged as a form of freedom for groups or individuals in expressing
their point of view. Article 10 (1) (a) of the Federal Constitution guarantees the right of all
people to freedom of speech and expression. Nevertheless, Article 10 (1) is according to the
provisions of Article 10 (2), 10 (3) and 10 (4). Following the Federal Constitution, the purpose is
only to allow the citizens to fulfil their obligations as citizens in Malaysia. Even so, clauses of
Article 10 (1 ) of the Federal Constitution states that the citizens should not voice an opinion too
often and engage in discussions and the fact that they have confronted authorization during the
presence of this act.

Article 149 of the Federal Constitution rescinds freedom of opinion. It simply demonstrates the
presence of legislative inconsistencies, including Article 10 (1) and Article 149. Article 10
includes twelve restrictions which are protection, economic ties with other countries, law and
order, ethical values, legislative rights, slander, and racial hatred. Legislation recently drawn up
almost 35 laws protecting rights to freedom of speech, press freedom and rights to demonstrate
which are essential instruments of freedom of speech.

The liberties provided under Article 10 are limited by a few provisions of law such as The
Printing Presses & Publications Act 1984. This act includes a number of limitations on media
and published papers. Malaysian publishers must at least have a minimum 1 year or lesser
publishing permit that may be used at any moment get revocated by the government. According
to the case of Lim Guan Eng v Public Prosecutor (1998) , in the appeal case, Lim Guan Eng, who
had been convicted for 18 months of imprisonment and fined under the Act for maliciously
publishing false news in the form of a pamphlet entitled ‘Mangsa Dipenjarakan.’

Last but not least, the Defamation Act 1957.This act regulates an1 individual using terms which
could tarnish their image in the nation. This affects the bad image of the individual in calling,
reading or publishing. The New Straits Times Press (M) Bhd and Ors v Ahiruddin Bin Attan 2
MLJ 814 is the most relevant case for defamation to challenge the rights of the freedom of
speech. The claimant, KL, collectively opened a lawsuit for slander for a complainant through
intentional deceit. NSTP previously brought a slander case regarding Ahiruddin Attan, which is
the claimant who released his blog in the year of 2006 in May about mainstream mass media.
NSTP as the complainant had demanded an order to make slander remarks on his site about
harassment. Eventually, NSTP lost in the court.

For the part of The United Declaration of Human Rights, the idea that perhaps the freedom of
speech is embedded strongly well into the existing right to freedom of speech. For all nations in
compliance with international humanitarian law, Article 19 of the United Declaration of Human
Rights is applicable. Article 19 of the International Covenant on Civil and Political Rights
(ICCPR) were prepared in order to ensure implicitly, the right to express and convey facts, and
the right to restrict the tabloid. This even include the international treaties, newly established
domestics for human rights law and also the existed human rights for example the Council of
Europe 1953 and Republic of South Africa 1996.

On the other hand, they were given the privileges to voice out however the Article 19 will govern
the talk, it will be more in a restricted manner. Nevertheless, the Federal Constitution made it
known in Section 10 (2) (a) that only the Parliament is empowered to set restrictions on the
freedom of speech. For instance, civil servants are capable of getting sacked due to the reason of
speaking without a limit that may affect the productivity of the company. Children in primary
and secondary schools will be punished for talking about certain topics that most likely will
interrupt the learning system or even for using foul language in the school compound area itself.
When the government offers money for citizens to voice out their opinions about the
administration, it could guarantee that perhaps the cash will not be useful for talking about the
state’s failures. Political debates regarding the state could be restricted because the government
does not allow discrimination on the grounds of perspectives.

Issue -

Current Issues Regarding Freedom of Speech and Association

As mentioned before, Federal Constitutions guaranteed our rights in the ambit of freedom of
speech and association but the reality is quite the opposite with the existence of few statutes such
as Penal Code, Peaceful Assembly Act, Sedition Act and Communications and Multimedia Act.
The statutes carry overly-wide and vague words that make it easy for the police officers to
instigate investigations and arrest people who have used their rights against the government's
favours. The most targeted groups are journalists, protests leaders who organised public protests,
voicing out their opinions and even the smallest things like drawing cartoons and doodles.

In order to establish the arguments, we need to further delve into the heart of laws which are the
precedents set by the court. In the case of Government of The State of Sarawak v Dato’ Sri
Wong Soon Koh [2021] 1 LNS 639, the plaintiff filed a suit against the defendant alleging
defamation when the defendant posted information about plaintiff’s previous case with Petronas
via his Facebook account and in his capacity as President of Parti Sarawak Bersatu (PSB). The
main issue in this case is whether it would be against the public interest for a government to sue
its citizens for defamation in Malaysia? The literal approach that was established in the case of
Chong Chieng Jen v Government of State of Sarawak & Anor [2019] 1 CLJ has stated that
according to Section 3 of the Government Proceedings Act 1956 (Act 359), the State
Government of Sarawak can sue a person or any party for defamation. The freedom of speech in
Malaysia is provided and protected in Malaysia under Article 10 of the Federal Constitution and
it is not an absolute right. Since the defendant of this case is the opposition party, the court
contended that they take a risk when voicing out their opinion outside Dewan Rakyat even
though their public duties bear the freedom of speech too. It was held that the claim is not
allowed because the defamation is immaterial and irrelevant.

International law

Freedom of expression is guaranteed under Article 19 of the Universal Declaration on Human

Rights (UDHR), and more or les in similar terms under article 19 of the International Covenant
on Civil and Political Rights (ICCPR):

“Everyone has the right to freedom of opinion and expression; this right includes the right to
hold opinions without interference and to seek, receive and impart information and ideas through
any media regardless of frontiers.”

Article 19 of the UDHR states that "everyone shall have the right to hold opinions without
interference" and "everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his choice".
The version of Article 19 in the ICCPR later amends this by stating that the exercise of these
rights carries "special duties and responsibilities" and may "therefore be subject to certain
restrictions" when necessary "[f]or respect of the rights or reputation of others" or "[f]or the
protection of national security or of public order (order public), or of public health or morals"

Freedom of expression is also protected in all three regional human rights treaties, at Article 10
of the European Convention on Human Rights (ECHR), at Article 13 of the American
Convention on Human Rights and at Article 9 of the African Charter on Human and Peoples’
Rights.

Yet, freedom of expression is not absolute.

Both international law and most national constitutions recognise that freedom of expression may
be restricted. However, any limitations must remain within strictly defined parameters. Article
19(3) of the ICCPR lays down the conditions which any restriction on freedom of expression
must meet: The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary: (a) For respect of the rights or
reputations of others; (b) For the protection of national security or of public order (ordre public),
or of public health or morals.

A similar formulation can be found in the ACHR and ECHR. It is vague enough to leave much
discretion at the hands of states as to how they should restrict freedom of expression to protect
the rights of others, national security, and particularly in the matters of personal morals, such as
religion. For instance, whereas the European Court has established particularly stringent
restrictions requirements of speeches that have been deemed or characterised as "political", it has
left a far greater margin of appreciation to states for restrictions targeting other forms of
speeches, particularly those deemed offending public morals or religion

In spite of this margin of appreciation, some degrees of consistency and protection have
developed over time, particularly in the form of the so-called three part test. For a restriction to
be legitimate, all three parts of the test must be met: First, the interference must be provided for
by law. This requirement will be fulfilled only where the law is accessible and “formulated with
sufficient precision to enable the citizen to regulate his conduct8.” Second, the interference must
pursue a legitimate aim. The list of aims in the various international treaties is exclusive in the
sense that no other aims are considered to be legitimate as grounds for restricting freedom of
expression. Third, the restriction must be necessary to secure one of those aims. The word
“necessary” means that there must be a “pressing social need” for the restriction. The reasons
given by the State to justify the restriction must be “relevant and sufficient” and the restriction
must be proportionate to the aim pursued.9 In conclusion, and as stated by the European Court of
Human Rights: "Freedom of expression … is subject to a number of exceptions which, however,
must be narrowly interpreted and the necessity for any restrictions must be convincingly
established.

International law imposes one clear positive duty upon states as far as restrictions of freedom of
expression is concerned, stated in Article 20 of the UN Covenant on Civil and Political Rights –
the prohibition on war propaganda and on hate speech:
- "Any propaganda for war shall be prohibited by law”
- “Any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.

- Right to education

Article 12 of the Federal Constitution of Malaysia provides for the right to education. Article
12(1) (a) and (b) prohibits any form of discrimination against a citizen ONLY on the grounds of
religion, race, descent or place of birth in terms of the administration of an educational institution
maintained by a public authority as well as in terms of the admission of pupils/students or the
payment of fees or in terms of providing financial aid for the maintenance or education for
pupils/students in any educational institution. Regardless of whether the funds are maintained by
a public authority and whether the funds are used in that respect within or outside Malaysia.
Article 12(2) FC provides for the protection of education in respect of religious institutions
towards children of a particular religion and also protects against discrimination ONLY on the
ground of religion in regards to any law relating to such institutions. This clause also expressly
provides that the Federal or State government may incur expenditure for the establishment,
maintenance, or provision of instruction or assistance towards Islamic Institutions in Malaysia.

In conclusion, the right to education in Malaysia is absolute to a certain extent. Malaysia is a

party to the Convention on the rights of the child, which has encapsulated a set of objectives that
Malaysia must take into consideration when implementing education policies in the Federation.
We can also see from case law that Malaysia has upheld the right to education of disabled
children. Apart from that, by virtue of Section 4(4) of the Human Rights Commissions of
Malaysia Act 1999, the principles in regard to inter alia, the right to education as stated under
Article 26 of the UDHR can be implemented in Malaysia provided that it is not inconsistent with
the Federal Constitution. We can see that some provisions of Article 26 of UDHR can be seen to
be reflected in our Education Act, such as the provisions on compulsory education for primary
school students, free education in public schools, etc…

One shortcoming, is that the definition of “discrimination” has not been expanded by Malaysia.
This can also be proven from the fact that Malaysia has not ratified the UNESCO Convention
against Discrimination, provided under Article 1(1), as well as the fact that Malaysia has inter
alia reserved its rights in respect of Article 2 of the CRC which is on the Principle of Non-
Discrimination. It can also be seen the extent of protection towards discrimination under Article
12 ONLY covers a few aspects. Therefore, for the right of education to be an absolute right in
Malaysia, the law must afford to protect a wider scope of discrimination in respect to education.

International laws

UDHR
- Article 26 of the UDHR recognizes education as a right where it was provided that (i) the
right to education is accessible to every individual. At least in the elementary and
fundamental stages, the education must be free.1 Elementary education must be
obligatory. In general, technical and professional education is offered and, on the ground
of merit, higher education is equally available to all, (ii) the objective of education is to
develop the human personality as a whole and to increase respect for human rights and
fundamental freedoms. It denotes fostering understanding, tolerance and harmony among
all nations, ethnic or religious groups, and shall encourage United Nations peacekeeping
initiatives, and (iii) parents have the right to decide the form of education to be given
beforehand to their children.
- As much as there are things that were guaranteed by the UDHR, at the same time, there
are few limitations to it as well.

1 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 5
 - The UDHR gives the right "in the elementary and fundamental stages" to free education
and emphasises the mandatory existence of elementary education. Since then, through
their enforcement of numerous human rights treaties, most governments have
acknowledged a legal duty to ensure that primary education is free and compulsory, and
to eventually make secondary education free and open to everyone. However, although
several governments have taken policy steps to extend free primary education to all
children, others have not turned their international commitments into national legislation
requiring governments to provide all children in their jurisdictions with free primary
education. The lack of democratic will to step towards complete 'free' education and to
supervise adequate local enforcement has a very important effect on children from the
poorest families or children belonging to historically excluded classes. Due to cost and
safety issues, parents may also prohibit girls from pursuing further levels of education
when the provision of education is limited.
- Not only does Article 26 of UDHR make reference to primary education. It specifies that
technical and professional education, and also higher education on the basis of merit,
must be made accessible in general. However, primary education only is seen as an
inherent right for all. However, little justification for limiting the right to this level does
seem to be present here. From the context of qualifications in a society in which an
increasing proportion of individuals graduate from high school and university, a primary
school leave certificate is of little significance. It is complicated to define a point at which
education ends to be a right and becomes just a fine, in terms of world knowledge,
analytical skills, communication, aesthetic growth, and so on. The implication is not on
the rejection of the idea of a right to education, but that the acceptance that the right is
much more broadly applied than is commonly believed.
- Article 26(2) of the UDHR mentioned that it shall foster understanding, tolerance and
goodwill between all nations, ethnic or religious groups.2 Nevertheless, within their
education systems, some governments continue to implement discriminatory policies.
These policies also contribute to the prohibition of ethnic or cultural practises or
languages, or can, according to their ethnicity, race, or belief, proceed to the segregation
of children into separate educational systems. In a variety of cases, ongoing
discrimination by school administrators or teachers in schools can escalate to drop-outs or
poor performance in schools.
- To conclude, UDHR focuses on the universality of education

- Right to religion

In Malaysia, the Federal Constitution (FC) provides rights in respect of freedom of religion. It is
also under the safeguard of the United Nations as stated under Article 18 of the Universal

2 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 7
Declaration of Human Right (UDHR) and in Article 9 of the European Convention on Human
Rights (ECHR).
Malaysian law

Article 11(1) of the FC provides the freedom of religion which protects the right to
freedom of religion, including the right to “profess, practise and propagate” one’s religious
beliefs. Regardless of Article 11 being provided by the FC, Article 3(1) of the FC clearly affirms
Islam as the religion of federation but it is also stated that other religions may be practised in
peace and harmony in any part of the federation. A clear restriction stated in this article is that
the practice of religion must definitely not disturb the peace and harmony in the federation.
However, as Article 3(4) provides that Article 3 does not derogate other provisions of the FC,
non-Muslims are not prohibited from practicing and professing their own religion. It should be
clear that the freedom of religion under the FC is specified according to three elements which are
mentioned earlier: the rights to profess, the rights to propagate and the rights to practice a
religion.
In relation to the rights to profess a religion, the FC does not restrict any Non-Muslim
from professing or converting to any religion. However, this is not the case for Muslims. Persons
professing the religion of Islam are are faced with issues when it comes to converting out of their
religion.
In the case of Lina Joy v. Majlis Agama Islam Wilayah Persekutuan 3, Lina Joy who
was born a Muslim converted to Christianity after she got married with a Christian guy and she
went to the National Registration Department (NRD) to change her religion. The NRD denied
her application to removed “Islam” from her identity card (IC) because she did not have an order
from the Syariah Court as only Syariah Court has the jurisdiction to allow conversion of
Muslims. In the case of Nyonya Tahir4, she was born a muslim but was raised in chinese
surroundings later adopted by a chinese family that practices buddhism. She practiced buddhism.
Her application to change religion on her IC was turned down thrice. Her last attempt was stating
that she wanted to be buried in accordance to budhist rites in her will. The Shariah court was
convinced that she was never a Muslim at faith and at the time of her death.
Article 11(2) of the FC provides that no person shall pay a tax of a religion that they
don’t practice or propagate. Article 11(3) of the FC states that religious groups have the right to
handle their own religious affairs, to set up and maintain institutions of religious or charitable
purposes, and to acquire and own property, hold and administer it in line with the law. Freedom
of religion also includes the rights such as attending mass gathering, building of shrines, and

3 Etienne Henry, ‘Article 5: 'No One Shall Be Subjected to Torture or to Cruel, Inhuman or Degrading Treatment or
Punishment.'’ (2018) ANU College of Law Research Paper No. 18-22, <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3202610#> accessed 21 February 2022
4 Amnesty International, ‘Malaysia: A blow to humanity: Torture by judicial caning in Malaysia’ (Report) (6
December 2010) AI-Index ASA 28/013/2010
propagating the religions. Each religious group has the right to build their place of worship.
Regarding the right to practice religion, the context of it is such that only practices and rituals
which are necessary fall under the meaning of practice. In the case of Meor Atiqulrahman Ishak
& Ors v. Fatimah Sihi & Ors5, the prohibition of wearing the turban during school hours was
not considered as against the freedom of religion.
When it comes to the right to propagate a religion, state law and Federal law is allowed to
enact any restrictions to control the propagation of any religion or belief towards any person who
professes the religion of Islam according to Article 11(4) of FC. Article 11(5) also provides that
religious freedom is subject to public order, public health and morality. Freedom of religion is
still protected during proclamation of emergency as no law inconsistent with the FC regarding
legislation can be legislated as stated under Article 150(6A). In the case of Kamariah Ali v.
Kerajaan Negeri Kelantan6, it was held that the freedom of religion provided for in Article 11
should not be given too broad meanings to the point that it goes against Islamic Law. Another
issue regarding the freedom of religion, is the conversion of minors. As seen in Article 12(3) the
religion of a minor is to be decided by his or her parents. In the case Teoh Eng Huat v Kadhi
Pasir Mas7 it was held that a child has no legal right to convert to another religion without the
consent of a parent.

International law

UDHR
- The UDHR has explicitly provide the right to freedom of thought, belief or faith and the
freedom of consciousness; this right includes freedom to change his religion or belief,
and freedom, either he were to do it alone or in a joint of community with others and in
public or private, to show and become apparent about his religion or belief in teaching,
practice, worship and observance in Article 18.
- Article 29(2) of the UDHR provides for limitations to all the rights mentioned in the
UDHR. This means that freedom of religion is subject to limitations as provided by law
as long as they are to protect the rights and freedoms of others and for maintaining
morality, public order and the welfare of a society.

5 UN Human Rights ‘Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment’ (ohchr.org, 2022) <https://www.ohchr.org/en/issues/torture/srtorture/pages/srtortureindex.aspx>
accessed 21 February 2022
6 UNCHR, ‘Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human
Rights resolution 1995/37 B’ (1997) UN Doc. E/CN.4/1997/7
7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR) art 3
 - The UDHR allows a person to change their religion or belief as long as it is subject to the
limitations of law in accordance to uphold morality, public order and the welfare of the
society.
- Next, as mentioned before, UDHR clearly emphasised the right to manifest your religion.
Whether it is done individually or done by a community, everyone has their rights to
practice their religion in peace.
- Another guarantee of UDHR is that freedom of religion extends to persons with theistic,
non-theistic and atheistic beliefs, those who choose not to profess any religion or belief.

European Convention on Human Rights (ECHR)

- Article 9 of the ECHR provides for Freedom of Religion. Every person has the right to
freedom of thought, conscience, religion and to manifest their religion or belief, in
worship, teaching, practice and observance. A person is also granted the right to change
his religion or belief and freedom. It does not matter if the person is in a community or
alone, in public or in private.
- However, Article 9 also provides for limitations to the manifestation of one’s religion or
belief which can be prescribed by the law and are necessary to protect public safety,
public order, health, or morals or for the protection of freedoms of others in a democratic
society as seen in Article 9(2) of ECHR.
- This means that there are legitimate aims for a state to justify limitations to a person’s
freedom of religion and belief. If a limitation imposed were to be legitimate it must
strictly fall under one of the aims listed in the provision of the ECHR.8
- As seen in the limitations stated above, the right of a person to manifest his religion can
be restricted. In the case of Francesco Sessa v Italy9, the court held that the protection of
the rights and freedoms of others provided a valid ground for the applicant’s right to
manifest his religion to be interfered with. In the case of Leyla Şahin v. Turkey10, it was
held that the prohibition of wearing the Islamic headscarf was justified on the grounds of
the interference being necessary in a democratic society and that the Turkish law
provided so. The applicant’s right to manifest her religion was not interfered with.
- The European Court of Human Rights (ECtHR) uses the doctrine of margin of
appreciation to limit the ability of States to legitimately restrict freedoms which are
guaranteed by the ECHR like the freedom of religion when the necessity arises. The
reasoning behind this is that the states are closer to their societies and in a better position

8 A v UK (1999) 27 EHRR 611

9 Tyrer v UK App no 5856/72 (ECtHR, 25 April 1978)
10 Universal Declaration of Human Rights, Article 26
 to estimate the restrictions of freedoms to cater public interest and domestic law better
than ECtHR. These limitations are permitted as long as they are in line with the
conditions in Article 9(2) of the ECHR.
- In contrast to some freedoms which have been limited by national security, the right to
freedom of religion in Article 9 is not. This is due to freedom of religion being a
foundation of a democratic society. As set out in the case of Nolan and K. v Russia11, this
means that a state cannot use national security as a ground to restrict the freedom of
religion of people.
- On the issue of proselytism, in the case Kokkinakis v Greece12 the court held that Article
9 of the ECHR included the right for individuals or groups to use proselytism to
propagate their religious doctrines and gain new followers on the condition that their
methods were not abusive, fraudulent, or violent. The court held that the right to
propagate and attract others to one’s beliefs was a right of manifestation of religion or
belief. The need to differentiate between proper and improper proselytism was
established. Improper proselytism was a legitimate ground for restriction on religious
freedom.
- A prominent issue of freedom of religion is religious discrimination. Article 14 of the
ECHR provides for a non-discrimination clause which states that the freedoms set in the
ECHR are to be secured without discrimination on any ground and for the purposes of the
discussion at hand, religion is included as one of them.

11 Universal Declaration of Human Rights, Article 26(2)

12 Lina Joy v. Majlis Agama Islam Wilayah Persekutuan [2004] 6 CLJ 242
Genocide
Concept (Origin)

Genocide is understood by most to be the gravest crime against humanity it is possible to

commit. It is the mass extermination of a whole group of people, an attempt to wipe them out of
existence.

“We are in the presence of a crime without a name”, a remark in 1941 made by Sir Winston
Churchill, the former Prime Minister of the United Kingdom that led Great Britain to win the
second World War. This remark was referring to the brutality of Nazi Germany in occupying the
Soviet Union. Later in 1944, a Polish-Jewish lawyer, Raphäel Lemkin coined the neologism
‘genocide’, which consists of the Greek prefix ‘genos’, meaning race or tribe, and the Latin
suffix ‘cide’, meaning killing. Implied by this, genocide basically means intentional action to
destroy a group in whole or in part, be it an ethnic, national, racial or religious group. After the
Holocaust by Nazi Germany, Lemkin succeeded in campaigning to have genocide universally
recognized and codified as an international crime. The result is the Convention on the Prevention
and Punishment of the Crime of Genocide (Genocide Convention).

This convention was adopted by the United Nations General Assembly on 9 December 1948, and
came into force in 1951. It has 152 member states that have ratified it, and 41 signatories.
Malaysia had also ratified it in 1994. However, the International Court of Justice (ICJ) has
constantly repeated that this convention contains principles that are part of customary
international law, and that the prohibition of genocide is a norm of international law, a jus
cogens. Thus, this prohibition must not be derogated. The countries that have not ratified are also
bound by the principles that genocide is a crime prohibited under international law. Furthermore,
in the case of Prosecutor v Kayishema and Ruzindana, the International Criminal Tribunal for
Rwanda, Trial Chamber II, supported the statement that the crime of genocide is part of the
international customary law and a norm of jus cogens.

Article II of the Genocide Convention defines genocide as any acts committed with the intent
to destroy or terminate a particular ethnic, national, racial or religious group, either part of the
group or the whole group. This includes killing the members of such a group, causing physical or
mental injury to the members of such a group, inflicting conditions of life that could destroy such
a group, preventing births within such a group, and transferring the child of such a group to
another group. In short, genocide is not mass massacre as many would misunderstood, but it is
the killings of some or all members of a particular group of people with the actual intention to do
so.
From the definition by the Genocide Convention, it can be concluded that there are 3 elements to
constitute genocide, namely intent, group and conduct.

- Elements of genocide under 1948 Convention on the Prevention and Punishment of

the Crime of Genocide
- identify whether the Rwandan genocide fulfilled those elements accordingly.

Elements of Genocide

Element 1
Genocide is provided under Article II, and has two elements:
- A mental element: The intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such;
- There must be a proven intent on the part of the perpetrators.
- There must be special intent, or doluc specialis.

Element 2
- A physical element: Any of the acts provided within the Article.
- The victims of genocide must be deliberately targeted, not randomly.
- The target of destruction must be the group, and not its members as individuals.
- The acts can be committed against only a part of the group, so long as it is within
geographical limited area and “substantial”.

Any of the acts:

● Killing members of the group;
● Causing serious bodily or mental harm to members of the group;
● Deliberately inflicting on the group conditions of life calculated to bring its physical
destruction in whole or in part;
● Imposing measures intended to prevent births within the group;
● Forcibly transferring children of the group to another group.

Rwandan Genocide

Perpetrators: Hutu-led government and Hutu militia

Target: Tutsi population -

Death estimates : 500,000 to 800,000 Tutsi deaths

 - The Rwandan genocide[3] occurred between 7 April and 15 July 1994 during the
Rwandan Civil War.[4] During this period of around 100 days, members of the Tutsi
minority ethnic group, as well as some moderate Hutu and Twa, were slaughtered by
armed militias. The most widely accepted scholarly estimates are around 500,000 to
800,000 Tutsi deaths.
- Large scale killings started after the assasination of the Rwandan president
- AIM: to overthrow Habyarimana and secure their right to return to their homeland.
- The genocide was conceived by extremist elements of Rwanda's majority Hutu
population who planned to kill the minority Tutsi population and anyone who opposed
those genocidal intentions. - adakah saya di right page ni

Mental element:
- intent to destroy ethnic group
- The intent to destroy is the most difficult element to prove. The ICJ held that the mens
rea must be formed prior to the commission of the genocidal acts. [kayishema and
ruzindana, 9trial chamber) on may 21, 1991]
- The type of group: ethnic group
- Definition of ethnical - Akayesu, (Trial Chamber), September 2, 1998 - “An ethnic
group is generally defined as a group whose members share a common language or
culture.”
- Application: members of the Tutsi minority ethnic group, as well as some moderate Hutu
and Twa, were slaughtered by armed militias
-

Physical element:

- Killings began after the assasination of the Rwandan President and key Tutsi and
moderate Hutu military and political leaders were executed.
- Roadblocks were erected throughout the capital; each person passing the roadblock was
required to show the national identity card, which included ethnicity, and any with Tutsi
cards were slaughtered immediately
- They also recruited and pressured Hutu civilians to arm themselves with machetes, clubs,
blunt objects, and other weapons and encouraged them to rape, maim, and kill their Tutsi
neighbors and to destroy or steal their property.
- Application: This clearly shows us that the victims were deliberately targeted by the
way roadblocks were set up to specifically identify Tutsi by way of their identification
cards and kill them. The goal of the Rwandan genocide was to kill every Tutsi living in
Rwanda, the Tutsi were targeted as a whole group and not just certain individuals of the
 Tutsi community. This tells us that the physical element is fulfilled as Tutsis were killed
and bodily injury and it was done to bring an end to the Tutsi population

The victims of genocide must be deliberately targeted, not randomly.

The target of destruction must be the group, and not its members as individuals.
The acts can be committed against only a part of the group, so long as it is within geographical
limited area and “substantial”.

Any of the acts:

● Killing members of the group;
● Causing serious bodily or mental harm to members of the group;
● Deliberately inflicting on the group conditions of life calculated to bring its physical
destruction in whole or in part;
● Imposing measures intended to prevent births within the group;
● Forcibly transferring children of the group to another group.
Torture
- The judges in Suzana bt Md Aris v DSP Ishak bin Hussain & Ors [2011] 1 MLJ 107,
[2010] 6 CLJ 712 discussed the inconsistency of Article 5 of Malaysian Federal
Constitution with Article 3 and 5 of the Universal Declaration of Human Rights.

Highlight the above discussion and analyse the decision of the court.

Suzana bt Md Aris v DSP Ishak bin Hussain & Ors

In this case, the deceased has been accused and detained as a suspension of drug addict. He was
then found dead after being unconscious. The judge referred to the case of Tan Teck Seng &
looked into Article 5 of FC, which is inconsistent with two different provisions under UDHR;
Article 3 on the right to life and Article 5 on the no-torture provision. Since the deceased
suffered pain as he has vomited blood while in the police custody, it was held to be a torture and
exemplary damages were awarded.

Discussion on Art 5

Article 5(1) in Part II of the Federal Constitution states in crisp and clear language the
constitutional protection of life and liberty: No person shall be deprived of his life or personal
liberty save in accordance with law.

[25]In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 at p
289; [1996] 2 CLJ 771 at p 801 Gopal Sri Ram JCA (as he then was) drew inspiration in
interpreting our art 5(1) from two decisions of the Indian Supreme Court:

The first of these is Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180 at p 193,
where Chandrachud CJ said: [*121] For purposes of argument, we will assume the
factual correctness of the premise if the petitioners are evicted from their dwellings, they
will be deprived of their livelihood. Upon that assumption, the question which we have to
consider is whether the right to life includes the right to livelihood. We see only one
answer to that question, namely, that it does. The sweep of the right to life conferred by
art 21 (the equivalent of our art 5(1)) is wide and far reaching. It does not mean merely
that life cannot be extinguished or taken away as, for example, by the imposition and
execution of the death sentence, except according to procedure established by law. That
is but one aspect of the right to life. An equally important facet of that right is the right to
livelihood because, no person can live without the means of living, that is, the means of
livelihood. If the right to livelihood is not treated as a part of the constitutional right to
life, the easiest way of depriving a person of his right to life would be to deprive him of
his means of livelihood to the point of abrogation. Such deprivation would not only
 denude the life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be in accordance with the
procedure established by law, if the right to livelihood is not regarded as a part of the
right to life. That, which alone makes it possible to live, leave aside what makes life
liveable, must be deemed to be an integral component of the right to life. Deprive a
person of his right to livelihood and you shall have deprived him of his life. (Emphasis
added.)

The second is Delhi Transport Corporation v DTC Mazdoor Congress & Ors 1991
Supp(1) SCC 600 at p 717, Satwant J when delivering the majority judgment of the
Supreme Court said: The right to life includes right to livelihood. The right to livelihood
therefore cannot hang on to the fancies of individuals in authority. The employment is not
a bounty from them nor can its survival be at their mercy. Income is the foundation of
many fundamental rights and when work is the sole source of income, the right to work
becomes as much fundamental. Fundamental rights can ill-afford to be consigned to the
limbo of undefined premises and uncertain applications. That will be a mockery of them.

[26]In a case where a person in police custody is deprived of medical attention and assistance,
that person is deprived of his life while his liberty is being deprived by law in the case of a
lawful arrest and detention. Nothing can buffer the harsh reality that a person who is being
deprived of his liberty is in a more vulnerable position of being deprived of life when his plea for
medical help falls on deaf ears and is being brushed aside as being a nuisance. When a person is
most vulnerable, he looks to the vindication of the law as the vanguard in protecting, promoting
and defending his basic human right. To be deprived of having access to the basic amenities of
life, that of having access to medical help when one is sick, is to be deprived of life in the true
sense of it in all its fullness. It is all the sadder when a person is being deprived of both liberty
and life even before he is charged for an offence, tried and convicted. Even then it is in the most
serious of crime that a person is deprived of his life in accordance with the law. [*122]

inconsistency of Article 5 of Malaysian Federal Constitution with Article 3 and 5 of the

Universal Declaration of Human Rights

[27]The fundamental liberties in Part II of the Federal Constitution are the human rights referred
to in the Human Rights Commission of Malaysia Act 1999. In carrying out the purpose of the
Act, the Commission shall have regard to the Universal Declaration of Human Rights 1948
(‘UDHR’) to the extent that it is not inconsistent with the Federal Constitution. See s 4(4) of the
Act.

Article 3 of the UDHR states that everyone has the right to life, liberty and security of person.
Article 5 of the UDHR further states that no one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. The UDHR is part and parcel of our jurisprudence as the
international norms in the UDHR are binding on all member countries unless they are
inconsistent with the member countries’ constitutions.

For the state to deprive a person of medical treatment promptly when a person is in police
custody, especially when the person is in pain and has just vomited blood, is to subject the
person to torture, cruel, inhuman or degrading treatment by default though not deliberately by
design.

Opinion on the case:

- We can see from their discussion that the court does not consider there to be an
inconsistency of Article 5 of Malaysian Federal Constitution with Article 3 and 5 of
the Universal Declaration of Human Rights.
- The court stated that where a person in police custody is deprived of medical attention
and assistance, that person is deprived of his life while his liberty is being deprived by
law in the case of a lawful arrest and detention. - In this case the victim was deprived of
his liberty under Article 5 of the FC
- The court further stated that to deprive a person of medical treatment promptly when a
person is in police custody, especially when the person is in pain and has just vomited
blood, is to subject the person to torture, cruel, inhuman or degrading treatment by
default.
- This tells us that the right to liberty under the FC and the UDHR are not inconsistent with
each other.
- Except for the save in accordance with law limb.
- The save in accordance with law makes whichever things provided for in the law legal
- Etc judicial caning is not torture.

Think about torture we have: prison - so many cases - what can we do to overcome the
problem (to overcome toture ke? Should be Soalan mdm

Torture we have
- JUDICIAL CANING
- Many cases of custodial deaths
- Examples of custodial deaths
- Malaysian P. Karuna Nithi, a 42 years old engineer, died in police custody at the
Tampin Police District Headquarters in Negeri Sembilan on 1 June 2013. He
went to the police station to report a domestic incident on 31 May 2013 but was
instead arrested for causing hurt. He died in police custody the next day. The
autopsy report, according to the media, found 49 injury marks on his body.
- Malaysian N. Dhamendran died in police custody in Kuala Lumpur on 21 May
2013. According to reports, he died due to a blunt force trauma 10 days after
 arrest, with his body bearing possible signs of torture. According to an autopsy
report, his ears had wounds from a stapler, and he had 52 injury marks and
overlapping bruises.
- A. Kugan, 38 years old, died in police custody in 2009 at Taipan Police Station,
Subang Jaya. Prior to his death, the family was not aware of his detention as
they were not informed by the police. The family only became aware when
they were informed of his death on 20 January 2009. The deceased's body
showed extensive injuries from beatings he sustained during his detention.
- Deaths of S. Balamurugan and M. Thanaseelan found dead in police custody at
the North Klang police district headquarters. The 44-year-old suspect had been
taken to the Magistrate’s Court the day before for a remand order, where he was
seen to be badly bruised, in a weakened state, and unable to walk. When offered a
sip of water by his lawyer, he had blood flowing out of his mouth and nose. Upon
seeing this, the Magistrate denied the police’s application for remand and
Balamurugan was ordered to be released. The Magistrate also instructed the
investigating officer to take Balamurugan to the hospital. However, instead of
complying with the Magistrate’s order, the police ‘rearrested’ Balamurugan and
took him back to the police station, where he later died. On the next day, the
pathologist from the Tengku Ampuan Rahimah Hospital in Klang who conducted
the post-mortem, concluded rather incredibly, the deceased had died from ‘heart
problems’.
- Inquiry into custodial deaths: In Malaysia, the Judiciary had established 14
Coroners’ Courts in April 2014 due to widespread public concern over the
increase in custodial deaths, the Coroners’ Courts are established to inquire
into the circumstances under which persons had died.

What can we do:

- A campaign to promote Malaysia’s ratification of the United Nations Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
- Since 2015, the Human Rights Commission of Malaysia (Suhakam), Amnesty
International Malaysia, the Bar Council, Suara Rakyat Malaysia (Suaram) and Lawyers
for Liberty have formed a coalition named “ACT4CAT” in order to campaign for the
government to ratify the Convention.
- By ratifying CAT, the government will be making a commitment to eradicate torture and
other cruel, inhuman or degrading treatment or punishment in Malaysia. Like all State
parties, Malaysia would be expected to take all necessary steps – legislative,
administrative and judicial measures to prevent acts of torture.
- adopt explicit legislative provisions that: prohibit any act of torture and stipulate that no
exceptional circumstance may be invoked to justify torture (possibly at the Constitutional
level), make acts of torture, wherever in the world they are committed, a specific offence
under criminal law, include appropriate penalties to punish the crime of torture, stipulate
 that an order from a superior may not be invoked to justify torture and make inadmissible
in legal proceedings evidence that is gathered through the use of torture.
- Allegations of torture in the prison must be promptly, impartially and effectively
investigated, even in the absence of a formal complaint, and “the investigation must seek
both to determine the nature and circumstances of the alleged acts and to establish the
identity of any person who might be involved.”
- Religious method..
- The character of the person (politeness)
- Psychology method..

Statutory in malaysia
- Status of ratification

Malaysia has not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political
Rights (ICCPR).

Contribution from the World Organisation Against Torture (OMCT) and SUARAM recall that
Malaysia is one of the few last countries in the region that has not ratified the aforementioned
universal instruments and consider that the failure to do so for so many years tends to reveal that
the government tolerates a culture of torture and impunity. In light of past and ongoing human
rights violations in the country, there is an urgent need to bring Malaysia in line with the
international system for the prohibition of torture. Ratification of the UN Convention Against
Torture as principal universal instrument – as well as the International Covenant on Civil and
Political Rights - should be a central piece of the needed reform process.

OMCT and SUARAM recall, however, that Malaysia is equally bound by customary
international law obliging it to respect and ensure respect for the absolute prohibition of torture
and cruel, inhuman or degrading treatment or punishment.

- Criminal code

The lack of criminal legislation that clearly defines and prohibits torture contributes to a failure
to adequately investigate, prosecute and punish acts of torture.

Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (UNCAT) defines the term “torture” as any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person.

While most countries have condemned and criminalised torture, Malaysia remains one of the
very few countries yet to commit to becoming a torture-free nation.
In Malaysia caning is used as a judicial punishment for criminal offences. Amnesty International
estimates that as many as 10,000 people each year are subjected to caning in Malaysia, and many
of them are foreign nationals. The Malaysian government does not punish officials for these
actions. On the contrary, it trains officers how to conduct caning and pays them a bonus for each
stroke. Some of these officers also seem to augment their income by soliciting bribes from
caning victims, who pay them to miss strokes on purpose. Less brutal forms of caning are
practiced in schools and, to a lesser extent, for certain offences under Islamic law (Shari’a),
whose application varies by state in Malaysia.

- International law

The international community has condemned torture in all its manifestations. The absolute
prohibition against torture is recorded in article 5 of the 1948 Universal Declaration of Human
Rights: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment” This Declaration, though adopted only among States in existence after the Second
World War, was negotiated among people from every continent and included representatives
from all regions of the world. It is celebrated as a truly universal declaration, recognising the
shared commitments of all States to move collectively towards the achievement of human rights
standards for all.

The prohibition against torture and other ill-treatment was hence given binding force in various
human rights treaties, including the International Covenant on Civil and Political Rights
(ICCPR), and more specifically the United Nations Convention against Torture (UNCAT).

There are many conventions and laws in the international level which prohibits torture. Looking
into the definition given to torture in those laws, caning is seen as a cruel punishment as we can
see in the discussion below.

The United Declaration of Human Rights (UDHR) is known as one of the most
comprehensive documents which establish human rights. It is provided that no person should be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. 13 This is known
as the right to freedom from torture. However, it should be noted that the UDHR is not legally
binding and therefore other conventions like the International Covenant on Civil and Political
Rights (ICCPR) and the United Nations Convention against Torture (UNCAT) among others
have been introduced to bind states with legal obligations.
The ICCPR also provides for this prohibition of torture in Article 7. The provision is
similar to that which is found in the UDHR. It also states that no person should be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.14

13 Dalam Perkara Nyonya Tahir, Exp Majlis Agama Islam Negeri Sembilan & Yang Lain [2006] 1 MLRS 25
14 Meor Atiqulrahman Ishak & Ors v. Fatimah Sihi & Ors [2006] 4 CLJ 1
 The CCPR General Comment No. 20 which was adopted at the 44th Session of the
Human Rights Committee discusses Article 7 of the ICCPR and provides further insight into it.
Based on the comment, Article 7 allows no limitation to be made to it and even in times of public
emergency, no derogation from Article 7 is allowed. The Committee also stated that the
prohibition of torture should extend to include corporal punishment.

However, the covenant does not give a specific definition to the list of concepts which are
covered by Article 7 because the Committee did not come up with a conclusive list to distinguish
punishments or treatment as distinguishing them required relevance to the circumstantial nature,
purpose and severity of the methods of torture.15

The first optional protocol of the ICCPR allows for an individual complaint mechanism if
there is a violation of any of the rights which are protected. However, the individual who wants
to file a complaint must belong to a State which is a party to the optional protocol and he must
have exhausted all other possible forms of remedies. This means that if a person finds that he has
been tortured, even if it were to be by way of caning, and if his state is a signatory of the first
optional protocol, then he may make a complaint to the Human Rights Committee.

Another international document which provides for protection against torture is the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) is more commonly known as the United Nations Convention against Torture (UNCAT).
This convention came into force in 1987 and has 84 signatories and 173 parties to date. Malaysia
is one of the UN states which has yet to sign UNCAT.

Article 1 of UNCAT defines torture as any act which causes severe pain or suffering, physical or
mental, which was intentionally inflicted as a means of getting information, a confession or as
punishment. Torture does not include any pain or suffering which arises from the cause of lawful
sanctions. Because of this statement, it has been often said that judicial caning which arises as a
form of punishment is not torture as it is done under lawful sanctions.

The definition of torture from UNCAT consists of four elements. The first is the element
of intention. The act of causing pain and suffering must have been intentional. The second
element is the element of severe pain and suffering. It does not matter if the suffering was
physical or mental. The third element is the element of purpose. The act must have been done
with a specific purpose in mind and this includes punishment. The fourth element is the element
of official involvement. The act must have been performed by officials or done with official
consent.16

15 Kamariah bte Ali & Anor v Government of the State of Kelantan & Anor [2005] 2 SHLR 93
16 Teoh Eng Huat v Kadhi , Pasir Mas & Anor [1990] 2 MLJ 300
 Caning which is applied by a state and involves infliction of pain by officials as a means
of punishment. For many victims of judicial caning the pain and suffering that they suffered was
severe. The prohibition is absolute and there can be absolutely no derogation from it. On the
issue of lawful sanctions which is used by governments to claim that caning is lawful as it was
technically allowed by way of the law we can look to a report made by the UN Special
Rapporteur on Torture.

The UN Special Rapporteur on Torture carries out visits to countries and communicates
with states on allegations of torture and submits reports to the Human Rights Council and the UN
General Assembly. 17 Based on the 1997 report made by Mr. Nigel S. Rodley, he stated that he
did not agree with the interpretation held by some governments that corporal punishment fell
under the ambit of lawful sanctions because it was allowed by the law.

The special rapporteur stated that lawful sanctions should refer to things which were deemed as
legitimate by society at large such as imprisonment which was implemented in almost all
criminal justice systems as a punishment because even though it was a deprivation of liberty, as
long as it was within the accepted standards, it would be deemed as lawful. The special
rapporteur was of the view that punishing someone by way of caning could not be deemed as
lawful just by authorising it by way of lawful sanctions. It would mean validating any physical
punishment as lawful no matter how torturous or cruel just because it is authorised by
legislation.18

Looking outside from the scope of judicial caning, caning on children is also prohibited
by international laws. The Convention on the Rights of the Child prohibits any child from being
subject to torture or inhuman, cruel treatment or punishment in Article 37(a). In the General
Comment No 8 of 2006, the Committee on the Rights of the Child stated that children are
protected from corporal punishment and other cruel or degrading forms of punishment.

The European Convention on Human Rights also prohibits torture and inhuman,
degrading punishment and treatment.19 By way of this article, the European Court of Human
Rights in the case of A v UK20 held that the beating of the child in this case was sufficient to be
deemed as in breach of Article 3. The same court also held that the judicial caning amounted to
breach of Article 3 as a degrading punishment in the case of Tyrer v UK21.

Generally, states which ratify the international conventions and become parties or
signatories to it, have to take certain steps and implement actions to ensure that the rights

17 Svyato-Mykhaylivska Parafiya v Ukraine App no 77703/01 (ECHR, 14 June 2007) and S.A.S. v France App no
43835/11 (ECHR, 1 July 2014)
18 Sessa Francesco v Italy App no 28790/08 (ECHR, 03 April 2012)
19 Leyla Şahin v. Turkey App no 44774/98 (ECHR, 10 November 2005)
20 Nolan and K. v. Russia App no 2512/04 (ECHR, 12 February 2009)
21 Kokkinakis v Greece App no 14307/88 (ECHR, 25 May 1993)
provided for are protected by the state parties. This is how international law provides protection
to various states and its citizens.

The implementation of the conventions are monitored by the relevant committees which
are charged with it. For example, Part II of the UNCAT provides for the establishment, duties
and powers of the Committee Against Torture (CAT). The CAT oversees the implementation of
the UNCAT by the state parties.

While these international conventions and discussions seem to leave an open ended definition
to the word torture, leaving us unsure as to whether or not caning fall under the purview of
torture, Amnesty International classifies judicial caning as a form of torture. Amnesty
International is a global non-governmental organisation which promotes and protects human
rights. Based on Amnesty International, judicial caning constitutes torture and other ill treatment
which are prohibited under any circumstances in international law

- SUARAM
Suara Rakyat Malaysia (SUARAM) is committed to defending and campaigning for human
rights in Malaysia and other parts of the world. The organisation began in 1989 as a campaign
body for the abolition of the Internal Security Act (ISA) in the aftermath of the infamous Operasi
Lalang when 106 Malaysians were detained without trial. Since then, it has evolved into the
leading human rights organisation in Malaysia, committed to protecting, preserving and
promoting human rights.
Slavery

Slavery, condition in which one individual was possessed by another. A slave was considered by
law as property, or asset, and was denied of the vast majority of the rights normally held by free
people. In certain social orders slaves were viewed as portable property, in others immovable
property, similar to land. They were objects of the law, not its subjects. Therefore, similar to a
bull or a hatchet, the slave was not usually considered responsible for what he did. He was not
responsible for torts or agreements. The slave for the most part had hardly any rights and
consistently less than his proprietor, yet there were very few social orders in which he had
completely none. Our right to be secured against slavery and subjugation is outright. It can never
be limited. The law identifying with constrained work is likewise supreme. Yet, it does not apply
to work that you need to do as a feature of a jail sentence or a network sentence. Nor does it
apply to work the legislature expects you to do in a highly sensitive situation. An individual
today is considered subjugated on the off chance that they are compelled to neutralise their will;
are possessed or constrained by an exploiter or "boss"; have restricted opportunity of
development; or are dehumanised, rewarded as a product or purchased and sold as property, as
indicated by abolitionist bunch Anti-Slavery International.

- theory and the legal perspective of slavery based on these law cases:-
[modern-day slavery]
1) Siliadin v France (France)
The facts of the case is a 15-year-old girl was being forced to work for 15 hours a day for a week
without pay, and she was not offered sufficient maintenance by her employer, because she did
not have her own room to sleep and her clothes were in bad conditions. However, France at that
time did not prosecute people for breaching right against slavery.

The European Court of Human Rights held that the girl is being subjected to servitude and
French had failed to fulfil their obligations under protection against slavery and forced labour
because French law did not provide adequate protection to the girls.

The Court of Appeal ruled that the additional investigations and hearings had shown that, while
it did appear that the applicant had not been paid or that the payment was clearly
disproportionate to the amount of work carried out, in contrast, the existence of working or living
conditions that were incompatible with human dignity had not been established. The European
Court of Human Rights rejected this decision and held that in this case there had been a domestic
slavery to the fore. The Court focused on the vulnerable nature of the applicant and the fact that
the work was being carried out without remuneration and against her will. This case brings the
issue of domestic slavery to the fore. In a report by the Committee on Equal Opportunities for
Women and Men it was observed that 95% of the domestic slavery victims taken up by the
Committee against Modern Slavery since 1994 were women. The case also demonstrates the
specific threat that domestic slavery poses to women and highlights that over 4 million women
worldwide are sold into domestic slavery each year.

‘The Court notes at the outset that, according to the Slavery Convention, “slavery is the status or
condition of a person over whom any or all of the powers attaching to the right of ownership are
exercised”.
It notes that this definition corresponds to the “classic” meaning of slavery as it was practiced for
centuries. Although the applicant was, in the instant case, clearly deprived of her personal
autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in
other words that Mr[.] and Mrs[.] B. exercised a genuine right of legal ownership over her, thus
reducing her to the status of an “object”.’

2) Hadjiatou Mani (Niger)

the facts are a 12-year-old girl was being sold to a man and she was forced to become wife and
domestic servant to the man. She was often beaten and not being paid for the work she had done.

In 2008, the Economic Community of West African States (ECOWAS) court held that the girl
was held in slavery and servitude and Nigeria is found guilty because it did not give protection to
the girl against slavery.

The applicant, who was born to a mother in slavery, was sold to a local chief at age 12. For the
next nine years she was subjected to rape, violence, and forced labor without remuneration.
When Niger’s Supreme Court failed to convict her "owner" under Article 270.1-5 of the Nigerien
Criminal Code, which made slavery illegal in 2003, the applicant brought her case before the
ECOWAS Community Court of Justice under Article 9(4) of the Supplementary Protocol
A/SP.1/01/05. The court ruled that the applicant had been a slave under the definition in Article 1
(I) of the Slavery Convention of 1926 and that in failing to convict her former "owner," Niger
had not upheld its legal responsibility to protect her from slavery under international law. This
case was the first ECOWAS ruling on slavery and only the second conviction made under
Niger’s 2003 anti-slavery law. The case gained a high level of publicity, setting the precedent for
women to fight back against the traditional slavery practices common to Niger and other
ECOWAS nations. As of 2009, there had been approximately 30 more cases upholding the
prohibition of slavery in Niger.

3) Patience Asuquo (UK)

Patience Asuquo was brought to the UK as a domestic worker and nanny.

For two-and-a-half years her ‘employer’ physically and mentally abused her. She was never paid
for her work and her passport was withheld from her.

Patience eventually managed to escape – only to be confronted with an unresponsive police

force, refusing to take her allegations seriously.

Using Article 4 of the Human Rights Act, Liberty forced officers to investigate and Patience’s
‘employer’ was eventually prosecuted – although not for slavery or forced servitude, as they
weren’t offences under English law at the time.

A new slavery offence was introduced in 2009 thanks partly to our campaigning.

And, thankfully, a lot more has changed since then – with the introduction of the Modern Slavery
Act in 2015, which has helped many more survivors of slavery to seek justice.

concept of slavery under international human rights.

- The first international document against slavery was the 1815 Declaration Relative to the
Universal Abolition of the Slave Trade.
- The Slavery Convention, 1926 “Slavery is the status or condition of a person over whom
any or all of the powers attaching to the right of ownership are exercised.”
- UDHR- Article 4: Prohibition of slavery and forced labour
- The International Covenant on Civil and Political Rights- Article 8: No one shall be held
in slavery; slavery and the slave-trade in all their forms shall be prohibited
- Article 7-ICCPR- Protects all human beings from torture or cruel, inhuman or degrading
treatment or punishment, thus outlawing some of the more detestable practices of
enslavement.
- https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0097.xml

issues of modern day of slavery.

- Modern slavery is the severe exploitation of other people for personal or

commercial gain
- Human trafficking. The use of violence, threats or coercion to transport, recruit or
harbour people in order to exploit them for purposes such as forced prostitution,
labour, criminality, marriage or organ removal.
- Forced labour. Any work or services people are forced to do against their will
under threat of punishment.
 - Debt bondage/bonded labour. The world’s most widespread form of slavery.
People trapped in poverty borrow money and are forced to work to pay off the
debt, losing control over both their employment conditions and the debt.
- Descent–based slavery. Most traditional form, where people are treated as
property, and their “slave” status was passed down the maternal line. Slavery of
children. When a child is exploited for someone else’s gain. This can include
child trafficking, child soldiers, child marriage and child domestic slavery.
- Forced and early marriage. When someone is married against their will and
cannot leave. Most child marriages can be considered slavery.

International law

Slavery is defined in the 1926 Slavery Convention as ‘the status or condition of a person over
whom any or all of the powers attaching to the right of ownership are exercised’. That definition,
in substance, is accepted as the contemporary definition, having been considered in negotiations
for both the 1956 Supplementary Convention and the 1998 Statute of the International Criminal
Court and found to be satisfactory as being an accurate reflection of the term.

UDHR
- Article 4 of UDHR secures your privilege not to be held in slavery or subjugation, or
made to do forced labour.
- Slavery is the point at which somebody really claims you like a bit of property.
- Subjugation is like slavery - you may live on the individual's premises, work for them
and be not able to leave, yet they do not claim you.
- Forced labour implies you are compelled to accomplish work that you have not consented
to, under the danger of discipline.

ICCPR
- Article 7: Protects all human beings from torture or cruel, inhuman or degrading treatment
or punishment, thus outlawing some of the more detestable practices of enslavement
- Article 8: No one shall be held in slavery; slavery and the slave-trade in all their forms
shall be prohibited. No one shall be held in servitude. No one shall be required to perform
forced or compulsory labour. Other human rights treaties indirectly address forced or
exploitative labour and trafficking by stressing the right to work for fair remuneration
- article 12: gives people the rights of liberty of movement and freedom to choose their
residence, both of which are incompatible with slavery
-
the League of Nations’ 1926 Slavery Convention
- The relation between forced labour and slavery was clearly defined in the League of
Nations’ 1926 Slavery Convention5.
- Article 1(1) of the Convention identifies the definition of slavery as 'the condition or
status of a person exercising any or more of his powers belonging to the right of
ownership.'
- Article 2(b) allows signatories "to bring about the full abolition of slavery, gradually and
as soon as practicable." When a person is compelled to work against his or her will, under
the threat of violence or some other kind of punishment, their freedom is limited. In these
conditions, forced labour6 is clearly seen as a form of slavery, to be abolished by the
1926 Convention.
- The 1926 Convention does not, however, explicitly ban forced labour.
- The requirements in Article 5 of the Convention could be considered suitable for forced
labour. In particular, the Convention stipulates that 'forced labour should only be
practised for public purposes' and 'as long as the labour is forced or obligatory' it must
always be of an exemplary nature, obtain sufficient remuneration and does not entail the
displacement of workers from their normal place of residence.

The UN International Covenant on Civil and Political Rights (1966)

- prohibits slavery and servitude, in line with the UN Universal Declaration of Human
Rights (1948).
- However, in Article 8(3)(a), the Covenant also sets out a separate and specific ban on
forced labour. This provision stated that nobody is obliged to perform forced or
compulsory labour, subject to some of the exceptions which are largely similar to those
set out in Convention No. 29 of the ILO.

The International Covenant on Economic, Social and Cultural Rights (1966)

- recognizes labour rights that contribute to the prohibition of forced labour.
- Article 6 of the Convention sets out "the right of everybody to gain their livelihood
through work which he freely chooses or accepts."
- The Articles 7 and 818 of this Covenant lay down certain conditions and rights, such as
fair wages and equal pay for work of equal value and the right to form and join the union,
to be upheld and protected by governments.

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions
Similar to Slavery 1956

- frowns upon the act of slavery.

- Art 6 of the convention mentioned states that the act of enslaving another human being is
to be criminalised and can be punishable as a criminal offence.
protocol to Prevent, Suppress and Punish Trafficking in Persons
- Article 3
- (a) "Trafficking in persons" shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other forms of
coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of
vulnerability or of the giving or receiving of payments or benefits to achieve the consent
of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or
other forms of sexual exploitation, forced labour or services, slavery or practices similar
to slavery, servitude or the removal of organs
-
Self-determination (indigenous people)

- definition of ‘Indigenous People’ under the principle of self-determination and the

rights claimed by the indigenous people

definition of ‘Indigenous People’ under the principle of self-determination

The definition of self-determination - the generally accepted definition would be: Rights of
peoples to determine their own political, economical, social and cultural destiny.

Two forms of self-determination today

- Internal - May be claimed by anyone who falls within the definition of peoples
- External - Only for colonial peoples or people under foreign occupation

‘Indigenous People’
- It is yet to be given a universally accepted definition.

Martinez Cobo (1983)

Indigenous communities, peoples and nations are those which, having historical continuity with
pre-invasion and or their territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories or parts of them. They form a present non-dominant
sectors of society and determined to preserve, develop and transmit to future generations their
ancestral territories and their ethnic identity and the basis of their continued existence as people
in accordance with their own cultural, patterns, social institutions and legal systems.

In short, those who used to inhabit, continue to inhabit and with to keep their strong attachment
to defined territory.

In Malaysia, the natural person, or commonly known as Orang Asli, may fulfil the international
definition as being the indigenous people. However, the Federal Constitution does not mention
the rights of the aborigines, but the special positions and privileges provided to Malays and
natives of Sabah and Sarawak as under Art.153 and Art.161A of FC.

There is always a conflict between an aborigine and a native. This can be seen between
Art.160(2) of FC which has defined aborigine as the Orang Asli in Peninsular Malaysia, and,
Art.161A(6) of FC defines native as indigenous people staying at Sabah and Sarawak.
Although it is stated under Art.8(1) of FC that everyone should be treated equally before the law,
Art.8(5)(b) of FC has permitted any laws enacted for the protection, well-being or advancement
of Orang Asli in Peninsular Malaysia or reservation of a position in public service without
contradicting Art.8(1) of FC. However, the status of Malays and native of Sabah and Sarawak
are vastly covered under the FC compared to the protection of Orang Asli in Peninsular
Malaysia.

The only legislation governing the administration and rights of an aborigine in Malaysia is the
Aboriginal People Act 1954 (APA). It serves as an act for the protection, well-being and
advancement of the aborigines. Also, it serves to secure and perpetuate control over the
aborigines, their lands and resources.

International law

Rights claimed by the indigenous people

The UNDRIP which is United Nations Declaration on the Rights of Indigenous Peoples
stipulates the rights which are claimed by the indigenous people. It is a legally non-binding
resolution passed by the United Nations in 2007. The UNDRIP establishes a universal
framework of minimum standards for the survival, dignity and well-being of the Indigenous
Peoples.

One of the rights which they are given to them is the

Right to be on ancestral lands and enjoy the benefit thereof - This also the right to enjoy the
benefits of their lands because they are culturally and spiritually connected to the lands in
question

There are articles of the UNDRIP which protect their right to be on their ancestral lands and
enjoy its benefits.

Article 10 - Indigenous peoples shall not be forcibly removed from their lands or territories.

Article 18
- It guarantees the peoples rights to participate in decision-making in matters which would
affect their rights.
Article 19 & 32
- Impose obligations on States to consult and cooperate in good faith with the peoples
concerns to obtain their free, prior and informed consent to legislative and administrative
decision that may affect them.

Article 25
- Article 25 - Indigenous peoples have the right to maintain and strengthen their distinctive
spiritual relationship with their traditionally owned or otherwise occupied and used lands,
territories, waters and coastal seas and other resources and to uphold their responsibilities
to future generations in this regard.

Article 26
- Reaffirms their right to lands, territories & resources which they have traditionally
owned, occupied or otherwise used or acquired and their right to own, use, develop and
control the lands territories & resources they possess.
- Also mandates States to give legal recognition and protection to these lands, territories
and resources. Such recognition shall be accorded with due respect to the customs,
traditions of the land tenure systems of the peoples concerned.
- States often exploit indigenous peoples lands or territories for the benefit of the
mainstream society and destroys the livelihood of the people.

Look into the case of Kaijing Tubek & discuss the decision made by Gopal Sri Ram.

The economic, social and political rights of the indigenous peoples.

- To secure their own means of subsistence and development and to engage freely in all
their traditional and other economic activities.

UNDRIP
Article 1 & 17
- Entitles indegenous peoples to all kinds of human rights

Article 2
- To enjoy freedom and equality and to be free from discrimination
- Indigenous peoples and individuals are free and equal to all other peoples and individuals
and have the right to be free from any kind of discrimination, in the exercise of their
rights, in particular that based on their indigenous origin or identity.

Article 3
 - They have the right to freely determine their political status and freely pursue their
economic, social and cultural development

Article 4
- They also have the right to autonomy or self-government in matters relating to their
internal local affairs

Article 5
- Right to maintain and strengthen their distinct political, legal, economic, social and
cultural institution, while retaining their right to participate fully if so choose in the
political, economic, social and cultural life of the State.

Right to self-determination

Self-determination is the rights of peoples to determine their own political, economical, social
and cultural destiny

United Nations Declaration on the Rights of Indigenous Peoples

- Article 3 UNDRIP - Indigenous peoples have the right to self-determination. By virtue of

that right they freely determine their political status and freely pursue their economic,
social and cultural development.

- Article 4 UNDRIP - Indigenous peoples, in exercising their right to self-determination,

have the right to autonomy or self-government in matters relating to their internal and
local affairs, as well as ways and means for financing their autonomous functions.

- However the right does not extend to damaging the state sovereignty and territorial
integrity as seen by Article 46.

- It is not in its external use.

- It would damage State sovereignty and territorial integrity.

UNDRIP
Article 46
- Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter
of UN or construed as authorizing or encouraging any action which could dismember or
 impair , totally or in part the territorial integrity or political unity of sovereign and
independent States.
- However the right does not extend to damaging the state sovereignty and territorial
integrity
Women rights
Women’s rights are the rights and entitlements that are claimed for the females. This is due to the
fact that there is a lot of discriminations and abuse towards women and girl. Gender inequality
and discriminations against females has been a problem since long ago. The Universal
Declaration of Human Rights also set the goals to achieve equality between sexes where it has
been listed in some Charter provisions. The similar provisions are embodied in Universal
Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR)
and Economic, Social and Cultural Rights (ICESCR), which together made up the International
Bill of Human Rights.

Sexual harassment
CEDAW - General recommendation No. 19: Violence against women

Sexual harassment includes such unwelcome sexually determined behaviour as physical

contact and advances, sexually coloured remarks, showing pornography and sexual demands,
whether by words or actions. Such conduct can be humiliating and may constitute a health and
safety problem; it is discriminatory when the woman has reasonable ground to believe that her
objection would disadvantage her in connection with her employment, including recruitment or
promotion, or when it creates a hostile working environment.

- In CEDAW it does not explicitly mention sexual harrasment. We can make reference to
General recommendation No. 19: Violence against women where the CEDAW
Committee discussed on sexual harassment. However as it is just a general
recommendation, the document is non-binding.

FC -
EA 1955 - Part XV(A) - covers sexual harassment

Section 2 - ―sexual harassment‖ means any unwanted conduct of a sexual nature, whether
verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or
humiliating or is a threat to his well-being, arising out of and in the course of his employment;

Section 81A - ―complaint of sexual harassment means any complaint relating to sexual
harassment made—
(i) by an employee against another employee;
(ii) by an employee against any employer; or
(iii) by an employer against an employee.

- THE ISSUE: EA only applies to sexual harassment cases in the workplace.

 - We do not have a law for sexual harassment explicitly. The PC does not explicitly
make it on offence to sexually harass someone.

Anti-Sexual Harassment Bill - tabled in Parliament last year

- “An Act to provide for a right of redress for any person who has been sexually harassed,
the establishment of the Tribunal for Anti-Sexual Harassment, the promotion of
awareness of sexual harassment, and to provide for related matters.”

EA - The Bill introduces a new Section 81H, which requires employers to “exhibit
conspicuously at the place of employment, a notice to raise awareness on sexual
harassment”. (his is another very vague provision. There are no details at all regarding
regarding what this “notice” must state, and really does appear to be something that was
pencilled in to tick off the box of doing something about workplace sexual harassment.)

Sexual harassment at workplace

The CEDAW focuses on three main gender issues which are (a) civil rights and the legal status
of women which include the right to vote, the right to hold a public office, and the right to not be
discriminated against in education and employment, (b) reproductive rights and (c) cultural
factors influencing gender relations. Under the CEDAW Art. 11(1) obliges its state members to
amend their laws to comply to its provisions in eliminating all forms of discrimination against
women in employment. Malaysia being one of its state members has had to amend its laws in
compliance to the convention thus, came the amendment of Art. 8(2). Furthermore, Art, 11(2)(a)
further obliges state members to ensure their laws are conducive for women in employment
regarding pregnancy, family and maternity leave. Even though CEDAW has set obligations to
ensure discrimination against women are eliminated, Malaysia has only made progress half way.
Nevertheless, even with CEDAW in place discrimination among genders are often seen in
private or public sectors of employment whether made directly or indirectly. Direct
discrimination refers to the blunt mistreatment and unjust workplace circumstances whereas
indirect discrimination is when the workplace environment is perceived to provide for equal
treatment and opportunity however, is it difficult for certain members to comply to the rules.

- In 1999, the Ministry of Human Resources (MOHR) constructed the Code of Practice on
the Prevention and Eradication of Sexual Harassment. The Code of Practice was intended
to regulate the conduct and behaviours of employers and employees however, it did not
have any power of law thus, acts as a mere practical guideline. Furthermore, there are no
laws that provide for the offence of sexual harassment therefore, making it more difficult
to hold the perpetrators accountable.
- Under the Employment Act 1955 there were no provisions for the prohibition and offence
of sexual harassment but rather only deals with matters of termination of employment
contract.
- Even under the Malaysian Penal Code, there are no adequate provisions that provide
specifically for sexual harassment as well it places a high burden of proof on the victim to
establish a prima facie case.

- Even under the Malaysian Penal Code, there are no adequate provisions that provide
specifically for sexual harassment as well it places a high burden of proof on the victim to
establish a prima facie case

Slavery (prostitution)
CEDAW - Article 6 - States Parties shall take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of women.
- Then there is Art 6 of CEDAW which calls upon state parties to combat the issue of
trafficking of women, but once again as a member state, Malaysia has failed to do their
duty. One example that shows this is the fact that in May 2015, it was discovered that
there were a large amount of human trafficking camps along the Malaysia-Thailand
border. No one was held accountable for those camps and ultimately, no one was ever
charged. Furthermore, there is no specific law in Malaysia that protects the rights of
women trafficking survivors, and by the absence of such a law, it prevents them from
claiming any compensation for their suffering
Section 372 of PC - Exploiting any person for purposes of prostitution
372A. - Persons living on or trading in prostitution
These sections make it an offence to engage or trade in prostitution.

The United Nations Convention for the Suppression of the Traffic in Persons and the
Exploitation of the Prostitution of Others[22] favors criminalizing the activities of those seen as
exploiting or coercing prostitutes (so-called "pimping" and "procuring" laws), while leaving sex
workers free from regulation. The Convention states that "prostitution and the accompanying evil
of the traffic in persons for the purpose of prostitution are incompatible with the dignity and
worth of the human person"

International law

The United Nations has extensively worked in the field of fighting sexual exploitation. The legal
provisions are part of international law on combatting violence against women, forced labour and
trafficking in human beings. In recent years, the UN and the CoE have started to highlight the
relation between these criminal offences and the demand for sexual services.

Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution
of Others, 1949
- Adopted on December 2, 1949, one year after the Universal Declaration of Human
Rights, this was the first legally binding document to address the issue of trafficking for
sexual exploitation246 as incompatible with the dignity and worth of the human person.
It recognizes a link between prostitution and trafficking for sexual exploitation. It calls
for punishment for those who "procure, entice or lead" others into prostitution, "exploit
the prostitution of another person", or knowingly keep or manage a brothel or any place
for the purpose of the prostitution of others. Furthermore, it prohibits any regulation used
to subject prostituted persons to registration or any other administrative controls.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979
- The CEDAW, adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. It defines what constitutes discrimination against
women247 and sets up an agenda for national action to end such discrimination. The
article 6 of the CEDAW establishes that “States Parties shall take all appropriate
measures, including legislation, to suppress all forms of traffic in women and exploitation
of prostitution of women”.
- The CEDAW Committee, in its successive comments and recommendations, calls upon
the Parties to strengthen the efforts on combating sexual exploitation of women and
provide support for women and girls who wish to leave prostitution. In its General
Recommendation no. 19 (11th session, 1992), the Committee recognizes that poverty and
unemployment force many women and girls into prostitution, and acknowledges the link
 between the commercial exploitation of women as sexual objects and gender based
violence.

Convention on the Rights of the Child (CRC), 1989

- The UN General Assembly adopted the Convention in 1989, which is a human rights
treaty that sets out the civil, political, economic, social, health and cultural rights of
children.
- The CRC calls upon States Parties to undertake all appropriate measures to protect the
child from all forms of sexual exploitation, including the exploitative use of children in
prostitution or other unlawful sexual practices and the use of children in pornography.
- Sexual abuse and exploitation includes commercial sexual exploitation, child prostitution
and child pornography, and it is considered as a form of violence, and therefore
“psychologically intrusive, exploitive and traumatic” even if not accompanied by
physical force or restraint

The UN Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography highlights the special vulnerability of girls to sexual
exploitation, acknowledging the disproportionate representation of girls among the sexually
exploited.

Gender pay gap

- The Organisation of Economic Co-operation and Development (OECD) defines gender
pay gap as the difference between the median earnings of women relative to men. The
Department of Statistics Malaysia (DOSM) reported that in 2018 for every RM100 in
salaries and wages received by men, women were only receiving RM93.20
- Unequal pay between women and men persists as a global issue impacting gender
equality in the workplace. No country has yet to achieve gender parity in wages.
Furthermore, the World Economic Forum’s (WEF’s) Global Gender Gap Index 2020
found that the progress towards closing this gap has stalled.
- According to the Women’s Aid Organisation (WAO), many women are often wrongfully
penalised at work due to a multitude of reasons which include discrimination and
incorrect perceptions about a woman’s ability to contribute.

The CEDAW focuses on three main gender issues which are (a) civil rights and the legal status
of women which include the right to vote, the right to hold a public office, and the right to not be
discriminated against in education and employment, (b) reproductive rights and (c) cultural
factors influencing gender relations.
The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) -
Article 11(1)(d) provides The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of treatment in the evaluation of
the quality of work;
Malaysia being one of its state members has had to amend its laws in compliance to the
convention thus, came the amendment of Art. 8(2).

FC - macam takde.. (DON'T NEED TO READ)

“although Malaysia ratified the ILO's Equal Remuneration Convention but there has been no call
for legislation to reflect equal pay practices for “work of equal value” in the wage system. This is
partly because the most effective champions of worker rights, the trade unions, are
predominantly led by men who fail to understand the concept of “work of equal value” and its
importance to women’s economic empowerment.’ - ni need ke boleh la since it cam issue?

The Employment Act 1955- The Employment act does not explicitly mention that there should be
no discrimination between the wages of a male and female employee. Furthermore, the EA,
which covers the lower-waged earners, unfortunately appears less concerned with discrimination
and equality of pay, despite the fact that low-waged earners are more vulnerable to unfair
treatment and abuse of human rights. Malaysia has yet to legislate/amend the Employment Act
or the Wages Council to address the issue of equal remuneration for equal work. For the
employment of women, the Act focuses on working hours and maternity benefits. Critically, the
coverage of the rights of women in this Act are considered to be inadequate. T

Currently, there is no law that protects women from discrimination of pay in the private sector.
An example of law can be taken from the UK where the Equality Act 2010 lays down that men
and women in the same employment performing equal work must receive equal pay, unless any
difference in pay can be justified. The implementation of a law like this in Malaysia would lead
to there being an exclusive law to prevent gender-pay discrimination.

In conjunction with the UN’s International Equal Pay Day on Sept 18, 2020, Persatuan Sahabat
Wanita Selangor (PSWS) calls on the Malaysian government to include amendments in the
Employment Act 1955 Amendment Bill that will guarantee equal pay for work of equal value.
The amendments must also include clear guidance on conducting an objective job evaluation
system with the participation of stakeholders and social partners. The ILO Guide to Gender
Neutral Job Evaluation can help speed up the drafting of these amendments.

Suggestion to overcome Gender pay gap

1. The government should introduce a provision on "equal pay for work of equal value" in
the Employment Act.
 2. it would be necessary to adopt and support positive equality duties at international (by the
ILO and regional organisations, e.g. the EU) and lower national levels. These would
build on and strengthen the equal pay principles recognised in many legal systems.

Pregnancy discrimination
- more than 40 per cent of women in the workforce experienced pregnancy discrimination.
- An online survey of 222 women by the Women’s Aid Organisation (WAO) revealed that
44% of women in the workforce had either lost a job, missed out on promotions, demoted
or put through prolonged probation because they were pregnant.
- Sumitra Visvanathan who is a WAO executive director said, “A woman should be free to
choose if and when to have children. She should not have to fear losing her job because
she wants to have a baby. Policy makers must ensure that employers are not
discriminating pregnant women. Terminating, demoting, or failing to hire or promote a
woman because she is pregnant is gender discrimination.”
-

FC - article 8
- Noorfadilla case
- pregnancy discrimination is a “breach of constitutional rights” under Article 8 (2) of the
Federal Constitution
- While Noorfadilla’s landmark court case affirms the constitutional right to gender equality
and non-discrimination, other court cases have shown that this constitutional protection
may not apply to private sector employees.
- In the 2004 case of Beatrice Fernandez v. Malaysian Airlines System, the Federal Court
decided that Article 8 (2) of the Federal Constitution does not apply to agreements
between private entities. Malaysian Airlines had fired air stewardess Beatrice Fernandez
when she became pregnant. The Federal Court ruled that Malaysian Airlines could fire
Beatrice based on the collective bargaining agreement between Malaysian Airlines and
its employees.
- Because of the fact that Malaysian Airlines was in the private industry, the same
protections did not apply. Hence, we need comprehensive laws to protect all women
from all forms of discrimination.
- In the case of Noorfadilla, it is clearly that the concern that constitutional law as a branch
of public law does not apply to private parties or private agreements is a highly
contentious matter for the judiciary.
- However, in the case of Rafizah Shima, the court held that women workers in the private
sector have been left with no protection against adverse treatment by employers on the
basis of a pregnancy, even though they have a constitutional right to non-discrimination
on the ground of gender and as provided for under CEDAW, an international women's
human rights treaty, to which Malaysia is a State party.
 - It is clear that legislation intervention is required to protect women workers from
pregnancy and maternity related discriminatory treatment at the workplace

EA - amendments
- the Employment (Amendment Bill) 2021 (“the Bill”) was tabled for its first reading on 25
October 2021
- It further states that the purpose of the amendments, among others, is “to provide
for the protection against discrimination and forced labour, and to provide for
maternity benefits”.
- Increase in paid maternity leave: The Bill increases the paid maternity leave
entitlement from the existing 60 days to 90 days. (The revised Bill which was
passed on 21 March 2022 provides for 98 days paid maternity leave.)
- Restriction on termination of pregnant employee: The Bill introduces a new Section
41A in the EA which will prohibit an employer from dismissing an employee who “is
pregnant or is suffering from an illness arising out of her pregnancy” except on the
grounds of — (a) wilful breach of contract; (b) misconduct; or (c) business closure.
The new Section 41A also provides that where the employment of a pregnant female
employee is terminated, the employer will bear “the burden of proving that such
termination is not on the ground of her pregnancy or on the ground of illness arising
out of her pregnancy”.
- (These changes provide much greater protection to pregnant employees from being
dismissed from their employment. The existing provisions of the EA [at Section
42(1)] only protect a female employee from being dismissed if she is absent for up to
90 days post maternity leave due to illness arising from her pregnancy that renders
her unfit to work. A notable effect of the protection being put forward by the Bill is
that employers cannot terminate the employment of a pregnant employee for poor
performance, or as part of a retrenchment exercise arising from redundancy.)
- (Interestingly, unlike the existing Section 42(1), the new Section 41A does not
contain the limit of a 90-day period. Also, while Section 42(1) refers to “illness
certified by a registered medical practitioner to arise out of her pregnancy and
confinement and to render her unfit for her work”, Section 41A only refers to “an
illness arising out of her pregnancy”. As a result, if the new Section 41A is passed in
its current form, it may render Section 42(1) redundant, as Section 41A is not limited
to 90 days, and has a seemingly lower bar as to what constitutes a pregnancy-related
illness.)
- Paternity leave: The Bill introduces 3 days paid paternity leave for married male
employees, for up to 5 confinements.[The revised Bill which was passed on 21
March 2022 provides for 7 days paid paternity leave.]
https://themalaysianlawyer.com/2021/10/26/employment-act-amendments-7-key-changes/

“Countries such as the United States adopt the Pregnancy Discrimination Act (PDA) to
protect women’s rights in the workplace. This Act ensures that employers treat
pregnant women in the same manner as other employees with similar abilities or
inabilities.

“PDA also forbids employers from discriminating against pregnant women in terms of
pay, job assignments, promotions, layoffs, training, and so on. Malaysia needs to work
towards this direction — awareness as a start and, eventually, a statute.”

International law

CEDAW contains a number of obligations on State parties which represent a multi-pronged

approach to eliminate discrimination against women with respect to pregnancy and maternity.
The State parties' obligation for the elimination of discrimination against women is therefore
central to CEDAW. The elimination of discrimination against women is a 'fundamental
precondition of equality' which is women's right to non-discrimination with their right to equality
to men in the enjoyment of their human rights and fundamental freedoms. In the context of
maternity protection, CEDAW requires a multi-pronged approach entailing a variety of measures
to eliminate discrimination against women. This is particularly evident in article 11 of CEDAW
which requires State parties to take all appropriate measures to eliminate discrimination against
women in employment and to specifically prohibit dismissal on the grounds of pregnancy and
maternity.

ILO (The International Labour Organisation)

The ILO has adopted three maternity protection Conventions: in 1919, 1952, and the most recent
in 2000, the Maternity Protection Convention (No. 183). They stipulate protective measures for
pregnant women and for women who have recently given birth, including the prevention of
exposure to health and safety hazards during and after pregnancy, entitlement to paid maternity
leave, maternal and child health care and breastfeeding breaks, protection against discrimination
and dismissal in relation to maternity, and a guaranteed right to return to work after maternity
leave.

Sixty-six countries ratified at least one of the three maternity protection Conventions, but the
influence of ILO standards extends well beyond ratifications.2 Not only does almost every
country now have some maternity protection legislation, many others also have measures to
support workers with family responsibilities, including fathers. This is occurring within a context
of broader social developments, including the rise in women’s paid work, the growth in non-
standard work (part-time, temporary or casual), population ageing and changes in family
patterns. The global economic crisis has in some countries exacerbated pre-existing gender
inequalities and highlighted the need to reconfigure both men’s and women’s work.3
Women’s trafficking
CEDAW - Article 6 - States Parties shall take all appropriate measures, including legislation, to
suppress all forms of traffic in women and exploitation of prostitution of women.

Anti-Trafficking Act
- The Anti Trafficking in Persons Act was enacted in 2007 and amendments were done in
2010, turning it into the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act
- No comprehensive law exists in Malaysia that penalizes the range of offences involved
in trafficking. Currently, instances of trafficking are often punished under laws which also
apply to lesser offences, and traffickers typically escape the full punishment they
deserve. The existing piece-meal provisions are weakened by overlapping jurisdictions.
They do not provide for the protection of victims. Currently, victims are viewed through
the prism of the Penal Code.

The Anti-trafficking in Persons and AntiSmuggling of Migrants Act 2007

PC
-

http://www.suhakam.org.my/wp-content/uploads/2013/12/Trafficking-in-women-and-
children2004.pdf

- Gender inequality is another push factor for trafficking. Women are particularly
vulnerable to trafficking because they are often excluded from mainstream
socioeconomic systems, such as education and employment and property ownership. In
most parts of the world, women suffer from income inequality and a disparity in political
influence. Their “unfavoured” status in the family can also lead to them being expected to
financially provide for their family. Women and girls are targeted for exploitative types
of work, such as sex work and domestic servitude.

As they are to the crime of domestic violence and other forms of violence, women are also more
vulnerable to exploitation and violence in the form of human trafficking. This vulnerability is
recognized in the UN Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). CEDAW, which Malaysia ratified in 1995, provides the relevant
international standards with relation to women’s human rights and the state’s obligation to
promote, respect, protect, and fulfil these rights. Much of WAO’s advocacy work is grounded in
the standards upheld by CEDAW, including in relation to human trafficking.

CEDAW Article 6 states that, “States Parties shall take all appropriate measures, including
legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”
While states have an obligation to address the issue of trafficking directly through legislation by
criminalising trafficking, prosecuting offenders, and enforcing punishments, states also have an
obligation to address more insidious forms of discrimination which may lead to women
becoming vulnerable to trafficking.
Equality

The most fundamental human right is the principle of equality. The principle of equality is
universally understood as it has been iterated in the Charter of the United Nations (Article 55(c),
The United Declaration of Human Rights (Article 3 and Article 6), the International Covenant on
Civil and Political Rights as well as the International Covenant on Economic Social and Cultural
Rights. Hence, equality could be said to have become a general principle of law recognised by
civilised nations, which is regarded as a source of law under Section 38(1) of the Statute of the
International Court of Justice. In Malaysia, the fundamental provision on equality can be found
under Article 8 (1) of the Federal Constitution of Malaysia which provides that all persons are
equal before the law and entitled to equal protection of the law.

In the context of Women’s rights, it is provided in the Charter of the United Nations (Article
55(c), The United Declaration of Human Rights (Article 3 and Article 6), that there must be
equality to all persons, inter alia, regardless of gender/sex. Further, The Convention on the
Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) is also an
instrument that protects Women’s Rights in terms of civil and political rights as well as
economic social and cultural rights. Malaysia ratified the CEDAW in the year 1995, and
subsequently amended Article 8(2) of the Federal Constitution of Malaysia to include the word
“gender” in the year 2001. Article 8(2) of the Federal Constitution, in the context of Women’s
rights, provides that there shall be no discrimination towards any citizen in any law or in the
appointment to any office or in the employment under public authority or under any law relating
to acquisition, holding or disposition of property or the establishment or carrying out
business/profession or in employment, on the grounds of gender. The amendment made to the
Federal Constitution was in order for Malaysia to be in line with Article 1 of CEDAW which
defines the term discrimination against women. Article 1 of CEDAW states that any distinct

The Federal Constitution recognises and guarantees Malaysian women fundamental rights as
citizens, providing that “there shall be no discrimination against citizens on the ground of
religion, race, descent, place of birth or gender.

Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012], the word ‘gender’ was
incorporated into Art 8(2) of the Constitution in order to comply with Malaysia’s obligation
under the CEDAW, to reflect the view that women were not discriminated. It is settled law that
the CEDAW had the force of law and was binding on member states, including Malaysia. In
interpreting Art 8(2) of the Constitution, it was the court's duty to consider the government's
commitment at an international level. As such, there was no impediment for the court to refer to
CEDAW in interpreting art 8(2) of the Constitution. Applying Arts 1 and 11 of CEDAW it was
found that pregnancy in this case was a form of gender discrimination. Hence it was found that
the plaintiff should have been entitled to be employed as GSTT even if she was pregnant.

Beatrice Fernandez v Malaysia Airlines System, [2004] the plaintiff was employed as an
airstewerdess by the defendant. Later she was dismissed by the defendant as she was found out
to be pregnant as stated in the agreement between defendant and plaintiff that states in case of
pregnancy, there will be either termination or dismissal of employment. The court held that
Article 8 of the FC did not govern private agreement between parties but only covers an
individual rights against public authorities.

AirAsia Berhad v Rafizah Shima Mohamed Aris [2014], where the Court of Appeal held that
clause 5.1(4) of the training agreement entered into between the appellant and the respondent,
which provides, inter alia, that the respondent must not get pregnant during the duration of the
training period, was a lawful contract between private parties and, thus, the agreement did not
violate Article 8 of the Constitution. The court also stated that the CEDAW had no force of law
in Malaysia as Malaysia had not incorporated the provisions of CEDAW into any domestic law.
The Court stated that ratification of the CEDAW alone did not make it have any binding effect.
The Court insisted that reference must be made to Article 8(2) of FC and as well as the decision
in the case of Beatrice Fernandez.

Therefore, we can see that Article 8 of FC did not fully cover the equality parts as there is still
some restriction and exception to the provision.

In 2016, the Federal Court handed down a landmark ruling in the case of Mohd Ridzwan Bin
Abdul Razak v Asmah Binti Hj. Mohd Nor (Mohd Ridzwan), which recognised and defined the
tort of sexual harassment. This decision has paved the way for victims to seek redress in
Malaysian civil courts for workplace sexual harassment beyond the restrictive means in the
Employment Act 1995. The judiciary’s progressive decision in Mohd Ridzwan is significant in
recognising and addressing the harm that sexual harassment in the workplace causes. However,
there is still a need for comprehensive legislation to ensure access to remedies and justice,
expand the scope and coverage of sexual harassment law, and define sexual harassment.

International law

UDHR
- In 1948, the Universal Declaration of Human Rights was adopted. It, too, proclaimed the
equal entitlements of women and men to the rights contained in it, “without distinction of
any kind, such as ... sex, ….” In drafting the Declaration, there was considerable
 discussion about the use of the term “all men” rather than a gender-neutral term.1 The
Declaration was eventually adopted using the terms “all human beings” and “everyone”
in order to leave no doubt that the Universal Declaration was intended for everyone, men
and women alike

Declaration on the Elimination of Discrimination against Women,

- In 1967, United Nations Member States adopted the Declaration on the Elimination of
Discrimination against Women, which states that discrimination against women is an
offence against human dignity and calls on States to “abolish existing laws, customs,
regulations and practices which are discriminatory against women, and to establish
adequate legal protection for equal rights of men and women”.
- Less than a year later a proposal for a legally binding treaty on women’s rights was made.
The Convention on the Elimination of All Forms of Discrimination against Women was
adopted by the General Assembly in 1979. Its preamble explains that, despite the
existence of other instruments, women still do not enjoy equal rights with men. The
Convention articulates the nature and meaning of sex-based discrimination, and lays out
State obligations to eliminate discrimination and achieve substantive equality.
- As with all human rights treaties, only States incur obligations through ratification.
However, the Convention articulates State obligations to address not only discriminatory
laws, but also practices and customs, and discrimination against women by private actors.
- With these general principles as an overarching framework, the specific obligations of
States to eliminate discrimination against women in political, social, economic and
cultural fields are laid out in 16 substantive articles.
- The Convention covers both civil and political rights (rights to vote, to participate in
public life, to acquire, change or retain one’s nationality, equality before the law and
freedom of movement) and economic, social and cultural rights (rights to education,
work, health and financial credit).
- The Convention also pays specific attention to particular phenomena such as trafficking,
to certain groups of women, for instance rural women, and to specific matters where there
are special risks to women’s full enjoyment of their human rights, for example marriage
and the family.
- The Convention defines discrimination in its article 1 as “… any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or
nullifying the recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other field.” Such
discrimination encompasses any difference in treatment on the grounds of sex which: •
Intentionally or unintentionally disadvantages women; • Prevents society as a whole from
recognizing women’s rights in both the private and the public spheres; • Prevents women
from exercising the human rights and fundamental freedoms to which they are entitled.
 - The Convention also specifies the different ways in which State parties are to eliminate
discrimination, such as through appropriate legislation prohibiting discrimination,
ensuring the legal protection of women’s rights, refraining from discriminatory actions,
protecting women against discrimination by any person, organization or enterprise, and
modifying or abolishing discriminatory legislation, regulations and penal provisions.
- The Convention foresees that achieving equality may require positive action on the part
of the State to improve the status of women. To accelerate women’s actual equality in all
spheres of life, States are permitted to use temporary special measures for as long as
inequalities continue to exist. The Convention thus reaches beyond the narrow concept of
formal equality and aims for equality of opportunity and equality of outcome. Temporary
special measures are both lawful and necessary to achieve these goals. In principle, these
measures should be removed once equal status has been achieved.

The Convention on the Rights of Persons with Disabilities (art. 6) recognizes the multiple
discrimination that women with disabilities are subjected to, and requires State parties to address
this by taking “all appropriate measures to ensure the full development, advancement and
empowerment of women” in the enjoyment of their human rights.

Contoh conclusion you should do

To conclude, in my own humble opinion the CEDAW in Malaysia has yet to make a powerful
influence on the protection of women in employment in Malaysia. This is because the executive
and parliament have not taken progressive steps in ensuring that there are domestic laws that are
compliant to the provisions of CEDAW. The lacunas of the law pose incriminating danger
towards the protection of women’s rights in employment and encourage discriminatory crimes
against women to continue as there is no fear of punishment instilled in the harassers or wrong-
doers. Women’s rights and the concept of feminism does not promote women to be more
superior than men, it is for both genders to treat one another as partners or equals. There are
certain protective measures to ensure that women are not prey to predators looking for the
opportunity to exploit them; however, the protection should not also promote a perception that
women are weak or victims. When looking back on history women were treated as weak and
feeble beings and over centuries the perception is still stuck within the mentality of society.
These measures are to ensure that women can see the same advancement that men have in the
past few centuries. In Malaysia, the significant amendment to Art. 8 (2) of the Constitution
proved to show immense progress in protecting the rights of women. Further, the amendment to
include the definition and offence of sexual harassment in the Employment Act has also made
significant improvement in enforcing women’s rights within the employment sector as well as
being compliant to the CEDAW
Children rights

Children’s rights refer, as many scholars reiterate time and again, to the human rights of
children; namely, ‘fundamental claims for the realisation of social justice and human dignity for
children’. Scholarship from general human rights law as well as litigation and social movements
allow us to draw insights that are equally pertinent to children’s rights law

- Malaysia ratified the Convention on the Rights of the Child to protect the best
interest of the children in Malaysia.
- However, there are some reservations made to certain provisions. Identify those
provisions and highlight the reasons why Malaysia chooses to reserve them
The Government expressed these reservations on the grounds that the CRC Articles were said to
"not conform with the Constitution, national laws and national policies of the Government of
Malaysia, including the Syariah law."

Malaysia has five reservations currently, namely to:

Article 2 on non-discrimination
Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each
child within their jurisdiction without discrimination of any kind, irrespective of the child's or
his or her parent's or legal guardian's race, colour, sex, language, religion, political or other
opinion, national, ethnic or social origin, property, disability, birth or other status.

2. States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Although there have been numerous campaigns promoting national unity, several groups of
marginalized and disadvantaged children continue to experience regular, ongoing discrimination.
- Indigenous children face systematic and multiple forms of discrimination.
- Discrimination against girls remains an issue, with child marriage disproportionately
affecting girls, both in higher incidences of child marriage and a lower minimum legal
age for girls than for boys.
- The Federal Constitution does not prohibit discrimination on the basis of physical or
mental disability, and children with disabilities continue to face difficulties in accessing
education.
 - The government has stated on several occasions that Article 8(2) of the Federal
Constitution does not protect LGBTIQ persons from discrimination and that
homosexuality is an illness.4
- Refugee, asylum-seeking, stateless, and irregular migrant children face multiple forms of
discrimination that stem largely from their uncertain legal status in Malaysia.
- Children living with HIV/AIDS face stigmatisation, difficulties in accessing education,
and effective care and support services that meet their needs.
- Children from the urban and rural poor continue to face discrimination and exclusion due
to their socio-economic status.
- Discrimination against Muslim children born out of wedlock remains a significant
problem.

Article 7 on name and nationality (stateless children)

Article 7
1. The child shall be registered immediately after birth and shall have the right from birth
to a name, the right to acquire a nationality and. as far as possible, the right to know and
be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field,
in particular where the child would otherwise be stateless.

There are no accurate or reliable figures on the number of stateless persons in Malaysia, much
less the number of stateless children. While Article 14(1) (b) Part II (1) (e) of the Federal
Constitution provides that a child born in Malaysia is, by operation of law, a Malaysian citizen if
he or she ‘is not born a citizen of any country,’ groups of marginalized children continue to be
issued birth certificates that state the child’s citizenship status as non-citizen, even though they
are not born a citizen of any other country. Abandoned children placed in government-run
welfare homes are at heightened risk of statelessness, as they do not possess birth certificates or
any form of identity document to confirm their citizenship status. The National Registration
Department has not instituted any form of citizenship determination procedures to resolve the
citizenship status of these children, although they are wards of the state.

Upon turning 18, many are released with undetermined citizenship; and those who are unable to
navigate the bureaucratic procedures and meet the evidentiary requirements, and are facing
financial constraints, can become undocumented and therefore “illegal” under Malaysia’s
immigration laws. Children born out of wedlock are given the citizenship status of their mothers,
so children born to an unmarried Malaysian father and non-Malaysian mother are not considered
citizens. This can place a child at heightened risk of statelessness if the mother is stateless, or has
abandoned the child without any documentation and is untraceable.
An unknown number of children of Indian descent are at risk of statelessness in Malaysia due to
their lack of a birth certificate or identity documentation. Reasons for not possessing
documentation include a lack of knowledge of the importance of legal documents; procedural
problems in obtaining documents; financial difficulties; non-registration of the parents’ marriage;
and no proof of birth.

Children born to foreign parents/migrant workers also are at risk of statelessness when their
births are not registered at a consulate and they are unable to trace their family’s country of
origin. Stateless children and children who are at risk of statelessness generally lack access to
formal education and face significant barriers in accessing healthcare. Their status renders them
vulnerable to abuse, exploitation and marginalisation.

Article 14 on freedom of thought, conscience and religion

Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and
religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable,
legal guardians, to provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health or morals,
or the fundamental rights and freedoms of others.

Article 14 provides a child’s right to the freedom of thought, conscience and religion. The right
to freedom of thought, conscience and religion is the right to think freely and to entertain ideas
and hold positions based on conscience or religious or other beliefs. It is the right to manifest his
religion or belief, in worship, teaching practice and observance.

Parents have the rights and duties to provide direction to the child in the exercise of the right.
Malaysia makes a reservation in this provision as we can see an inconsistency in this provision
and the provision of the Federal Constitution. Article 11 of the Malaysian Federal
Constitution provides for the right to freedom of religion. However this right does not
extend to children because Article 12(4) states that the religion of a person under the age
of 18 years shall be decided by his parent or guardian.
Case: This can be seen in the case of Teoh Eng Huat v Kadhi Pasir Mas Kelantan. The court
stated that, in this case a 17 years old Buddhist girl wanted to convert to Islam without the
consent from the parents was null. The court then held that in matters of religion, a child does not
have the automatic right to receive instruction relating to any other religion than his own without
the permission of the guardian or parent
We can see the inconsistency where the CRC provides a child the right to choose his own
religion and the parent or guardian merely provides directions to the child to exercise the
right. In the FC, it is clearly seen that a child’s religion is determined by his parents and he does
not have the right to choose.

This inconsistency is the reason why this reservation is made.

Although the Federal Constitution provides that ‘every person has the right to profess and
practice his religion,’ this right applies only to adults: under the Federal Constitution, a person
below age 18 needs explicit permission from his/her guardian before converting to another faith.
Some indigenous communities have reported ‘extreme pressure’ to convert to Islam, in clear
violation of Article 12 of the UN Declaration on the Rights of Indigenous Peoples and Article 18
of the Universal Declaration of Human Rights. Indigenous children have been subject to what
they perceive as an unwritten ‘Islamization policy’ and an attempt to assimilate them within the
dominant Malay ethnic group.

Malaysia removed its reservations to CRC Articles 13 and 15 regarding freedom of expression
and freedom of peaceful assembly; however, laws, policies and the actions of law enforcement
personnel continue to restrict the ability of children to exercise these rights. For example, the
Peaceful Assembly Act 2012 states that persons below age 21 are prohibited from organizing
peaceful assemblies and children (defined in the Act as persons below age 15) are prohibited
from participating in peaceful assemblies with certain exemption.

Article 28(1)(a) on free and compulsory education at primary level

Article 28
1. States Parties recognize the right of the child to education, and with a view to achieving
this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
Article 28(1)(a) provides that primary education is compulsory and free for all. Primary
education should be compulsory and free for all as primary education is the first step to
guaranteeing access to education for all. Education gives children the ability to think positively
and have a more positive attitude towards life. At a young age, education is essential to the
development and growth of children.
Many children from refugee, asylum-seeking, stateless and irregular migrant communities lack
access to formal education, as government schools do not generally accept non-Malaysian or
undocumented children.
In 2021, it was reported that there have been several incidents of stateless children in Penang
being denied enrolment into government schools due to their lack of a passport. The requirement
of a passport makes it extremely difficult for stateless children to be enrolled in government
schools. It is almost impossible for stateless children to provide passports as the biological
parents of these children are not in Malaysia, or their parents’ country of origin did not issue
passports to children who were born outside that country.

The government announced in 2009 that Malaysian children without birth certificates can attend
government-run schools, if they can obtain confirmation from the Department of Social Welfare
or their village headmen that they were born in Malaysia. However, awareness of this policy is
believed to be low, and no corresponding exemption has been granted for children to sit for
official examinations. Because of the lack of awareness, many children still go without primary
education.
We can see that the current practices in Malaysia are inconsistent with the provision that primary
education be made compulsory and available free to all.
Removing the reservation to this article would make it a requirement for the Malaysian
Government to progressively work toward making primary education for stateless children more
available despite the fact that they do not have a passport.
An individual’s basic right to education must be upheld and protected. Children, whether they
are Malaysian citizens or not, must be equipped with learning and skills in order to improve their
prospects and prepare them for the future.
Despite achieving almost universal primary education and substantial progress towards universal
secondary education, significant challenges remain for children from marginalised and
disadvantaged communities. Many children from refugee, asylum-seeking, stateless and irregular
migrant communities lack access to formal education, as government schools do not generally
accept non-Malaysian or undocumented children.
The government announced in 2009 that Malaysian children without birth certificates can attend
government-run schools, if they can obtain confirmation from the Department of Social Welfare
or their village headmen that they were born in Malaysia. However, awareness of this policy is
believed to be low, and no corresponding exemption has been granted for children to sit for
official examinations.
Marginalised and disadvantaged children who cannot access formal education or exams are often
at risk of entering into the informal workforce at a young age. Once there, their lack of
documentation and legal status means that they are without recourse in the event of unfair
treatment, abuse, violence or injury in the workplace. Dropout rates in the transition from
primary to secondary school have remained a challenge, impacting some 17,000 children.15
Dropout rates are higher for boys, with school completion rates for girls remaining higher at both
primary and secondary levels.
In compliance with the Education Act 1996, refugee children who have reached their school age
are not able to attend schools in Malaysia. Only children with a birth certificate are allowed to
enrol in educational institutions in Malaysia. This provision precludes refugees, asylum-seekers,
stateless children, children of legal or illegal migrant workers or street children.
STAR ARTICLE
THE Malaysian Bar is perturbed by the fact that there are still stateless children who are denied
access to government schools. It was recently reported that there have been several incidents of
stateless children in Penang being denied enrolment into government schools due to their lack of
a passport.
The Malaysian Bar is of the view that such a requirement by the Education Ministry would make
it extremely difficult for stateless children to be enrolled in government schools. It is almost
impossible for stateless children to provide passports as the biological parents of these children
are not in Malaysia, or their parents’ country of origin did not issue passports to children who
were born outside that country.

Furthermore, many adoptive parents or guardians of stateless children are not aware of the
procedures necessary to obtain a passport for their children. Previously, adoptive parents of
stateless children only had to furnish a court order and documentation of the adoption for their
adopted children to register with a government schooling.

Education is a fundamental human right that is enshrined in many international conventions.

Article 26 of the Universal Declaration of Human Rights, stipulates that all persons shall have
the right to free and compulsory education, at least in the elementary stages. Pursuant to Article
28 of the Convention on the Rights of the Child, state parties must make primary education
compulsory and available to all.

The Malaysian Bar takes the view that unnecessary bureaucracy will only make the lives of these
stateless children even more arduous, and it will affect them adversely if they are unable to
receive formal education.

Therefore, we call on the Education Ministry and the Malaysian government to review their
policies on requirements imposed on stateless children. They should streamline the process
throughout the country and notify the respective state education departments about the policies
and rights of stateless children when enrolling in government schools. No policy should deprive
or hinder a child’s access to education just by virtue of their citizenship.

The authorities must take cognisance of the importance of education for children. An
individual’s basic right to education must be upheld and protected. Children, whether they are
Malaysian citizens or not, must be equipped with learning and skills in order to improve their
prospects and prepare them for the future.
Article 37 on torture and deprivation of liberty
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without possibility of
release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the
inherent dignity of the human person, and in a manner which takes into account the needs
of persons of his or her age. In particular, every child deprived of liberty shall be separated
from adults unless it is considered in the child's best interest not to do so and shall have the
right to maintain contact with his or her family through correspondence and visits, save in
exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal
and other appropriate assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such action.

Caning male children is a lawful penal sanction in the criminal justice system and
continues to be applied to boys in conflict with the law. Caning and other forms of corporal
punishment are also used as a lawful disciplinary measure in penal institutions, as well as schools
and alternative care settings. Corporal punishment inflicted in the family home remains legal and
is believed to be widespread, although no data is available. Corporal punishment has also been
used as a form of punishment for homosexuality, or perceived homosexuality. In research
conducted in nine primary and ten secondary schools in 2011, students reported being slapped in
the face, pinched, hit on the back of head, having their hair, eyebrows, ears and sideburns pulled,
verbally abused, and being forced to do repetitive physical activity, such as squats while crossing
their arms and holding their earlobes.8

This occurrence in Malaysia is inconsistent with Article 37.

International law
children’s rights as human rights are a part of the global UN human rights system as well as the
various regional human rights systems. Within the nine core UN human rights treaties, there are
specific references to children or particular issues of central interest to children.
 - The International Covenant on Civil and Political Rights (ICCPR) prohibits death penalty
for persons under the age of 18 (art. 6.5), accords special attention to fair trial guarantees
for juveniles (art. 14.1 and 14.4) and ensures the right to protection without
discrimination as well as the right to name and nationality for every child (art. 24).
- The ICESCR creates obligations to provide special protection and assistance to all
children, including protection from economic and social exploitation (art. 10.3).
- Article 29 of the Convention on the Protection of the Human Rights of All Migrant
Workers and Members of their Families (CMW) also reiterates the right to a name,
registration at birth and a nationality for children, in line with art.
- Art. 30 CMW focuses on the right to education of children of migrant workers and art.
- 45.2–4 CMW entails the equal rights of children of migrant workers to integration in the
local school system and to facilitation of learning in their mother tongue.
- Children-specific protection measures are envisaged under Article 7 of the Convention on
the Rights of Persons with Disabilities (CRPD) for children with disabilities as well as
under Article 25 of the International Convention for the Protection of All Persons from
Enforced Disappearance (ICED) for children affected by enforced disappearance of one
or both of their parents or legal guardians
- the specific rights and protections accorded to children under the CRC are also relevant
for the broader human rights field. For instance, the UN Human Rights Committee has
referenced art. 37 CRC as a key provision in an almost universally ratified treaty that is ‘a
valuable source in informing the interpretation of the [ICCPR]’ in the case of life
sentences imposed on juvenile offenders
- Among the regional human rights systems, the African regional system is the only one
that has a general children’s rights convention similar to the CRC.
- The 1990 African Charter on the Rights and Welfare of the Child (ACRWC) contains
provisions on all aspects of children’s rights, comparable to the CRC, but sensitive to the
African context, for instance, through including references to ‘positive African morals,
traditional values and cultures as well as ‘the promotion and achievement of African
Unity and Solidarity’ within the aims of education (art. 11.2).
-
-

UDHR
- There are a number of provisions of the UDHR that have influenced the development of
children’s right law down the road.
- Article 26 of the UDHR recognizes education as a right where it was provided that (i) the
right to education is accessible to every individual. At least in the elementary and
fundamental stages, the education must be free.22 Elementary education must be

22 Universal Declaration of Human Rights, Article 26

 obligatory. In general, technical and professional education is offered and, on the ground
of merit, higher education is equally available to all, (ii) the objective of education is to
develop the human personality as a whole and to increase respect for human rights and
fundamental freedoms. It denotes fostering understanding, tolerance and harmony among
all nations, ethnic or religious groups, and shall encourage United Nations peacekeeping
initiatives, and (iii) parents have the right to decide the form of education to be given
beforehand to their children.
- As much as there are things that were guaranteed by the UDHR, at the same time, there
are few limitations to it as well.
- The UDHR gives the right "in the elementary and fundamental stages" to free education
and emphasises the mandatory existence of elementary education. Since then, through
their enforcement of numerous human rights treaties, most governments have
acknowledged a legal duty to ensure that primary education is free and compulsory, and
to eventually make secondary education free and open to everyone. However, although
several governments have taken policy steps to extend free primary education to all
children, others have not turned their international commitments into national legislation
requiring governments to provide all children in their jurisdictions with free primary
education. The lack of democratic will to step towards complete 'free' education and to
supervise adequate local enforcement has a very important effect on children from the
poorest families or children belonging to historically excluded classes. Due to cost and
safety issues, parents may also prohibit girls from pursuing further levels of education
when the provision of education is limited.
- Not only does Article 26 of UDHR make reference to primary education. It specifies that
technical and professional education, and also higher education on the basis of merit,
must be made accessible in general. However, primary education only is seen as an
inherent right for all. However, little justification for limiting the right to this level does
seem to be present here. From the context of qualifications in a society in which an
increasing proportion of individuals graduate from high school and university, a primary
school leave certificate is of little significance. It is complicated to define a point at which
education ends to be a right and becomes just a fine, in terms of world knowledge,
analytical skills, communication, aesthetic growth, and so on. The implication is not on
the rejection of the idea of a right to education, but that the acceptance that the right is
much more broadly applied than is commonly believed.
- Article 26(2) of the UDHR mentioned that it shall foster understanding, tolerance and
goodwill between all nations, ethnic or religious groups.23 Nevertheless, within their
education systems, some governments continue to implement discriminatory policies.
These policies also contribute to the prohibition of ethnic or cultural practises or

23 Universal Declaration of Human Rights, Article 26(2)

 languages, or can, according to their ethnicity, race, or belief, proceed to the segregation
of children into separate educational systems. In a variety of cases, ongoing
discrimination by school administrators or teachers in schools can escalate to drop-outs or
poor performance in schools.
- To conclude, UDHR focuses on the universality of education

UK
- In United Kingdom, the right of education is upheld up Article 2 , first protocol of the
Humans Right Act 1998
- The first sentence of Article 2 of Protocol NO.1 of Human Rights Act 1998, guarantees
that no person would be denied the right of education. The second sentence of the article
guarantees that whether it be any sort of function in accordance with education and
teaching, the article ensures that the state respects the right of parents to guarantee such
education and teaching in compliance with their respective religious and philosophical
convictions.
- To have a better view point, Article 2 of Protocol NO.1 constitutes as a whole which is
dominated by the first sentence in the article, and the right is actually set out in the
second sentence of the article, where by it is in accordance of the fundamental right the
education, this is furthermore illustrated in the case of Campbell and Cosans v the United
Kingdom, whereby the judge Kjeldsen, Busk Madsen and Pedersen judgement stated the
following :
- "The second sentence of Article 2 (P1-2) implies ... that the State, in fulfilling the
functions assumed by it in regard to education and teaching, must take care that
information or knowledge included in the curriculum is conveyed in an objective, critical
and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that
might be considered as not respecting parents' religious and philosophical convictions.
That is the limit that must not be exceeded."
- There are many limitations found in regards to Article 2 of Protocol NO.1 of Human
Rights Act 1998 in the United Kingdom.
- The first limitation found was in regards to the lack of availability of education for all,
the first example is that, the children are in custody and children in immigration detention
are not granted the statutory right to education. Many young individuals in custody are
not educated under the National Curriculum, and on the other hand, educational provision
found in the immigration detention centres are found to be severely unsatisfactory, which
impacts and compromises the development and future educations and opportunities of the
children who are detained refuges and asylum seeking.
- Furthermore, the second limitation found is also that the lack of access to education that
is inclusive for all children, children in care, approximately 60,ooo of them have missed a
significant chuck of schooling, which results in poor educational outcomes. What else is
 that, economically disadvantaged background children suffer from low educational
attainment. The UK government also has failed whether deliberately or not deliberately
to give importance to grant access to education to those teen moms who are facing
difficulties to get education.
- Lastly I would like to discuss the lack there of inclusiveness in the UK education
system,whereby the Roma and Traveller childrens are not granted admission in schools,
and suffer from low educational attainment compared to other kids, this same
experienced is also suffer by African and Afro-Caribbean children, who sadly have to
face systematic racism under education

CRC
In 1995, Malaysia ratified the United Nations Convention on the Rights of the Child (CRC) as an
indication of its commitment to the protection and welfare of children. The CRC is focused on
some fundamental principles, which are the principle of non-discrimination, the child’s best
interests, the right to life, health and development, and taking into account the child’s views in
decisions that impact them according to their age and maturity.

- The CRC consists of three parts. Part I offers a definition of the child, contains general
principles and obligations, and a detailed list of specific rights and obligations. The CRC
is fairly comprehensive in scope, and covers civil, political, economic, social and cultural
rights. Part II deals with the CRC’s monitoring body, the Committee on the Rights of the
Child. Part III holds general treaty law provisions.
- The CRC is often said to contain the ‘three P’s’ of children’s rights, namely protection,
provision and participation. Hammarberg first suggested in 1990 that the articles in the
CRC may be more easily understood when grouped into the ‘three P’s’:
- Provision – the right to get one’s basic needs fulfilled – for example, the rights to food,
health care, education, recreation and play.
- Protection – the right to be shielded from harmful acts or practices – for example, to be
protected from commercial or sexual exploitation, physical or mental abuse, or
engagement in warfare.
- Participation – the right to be heard on decisions affecting one’s own life
- The CRC is also said to embody general principles of children’s rights as reflected in
various provisions of the treaty. These general principles are non-discrimination and the
right to equality (art. 2); the best interests of the child (art. 3); right to life, survival and
development (art. 6) and respect for the views of the child, also dubbed the participation
principle (art. 12).
- The two children’s rights specific principles among the general principles are the best
interests of the child and the right to life, survival and development. The principle of the
best interests of the child far predates the CRC and has a long history, particularly in
 family law courts in the US legal system. Although the principle of best interests does not
have a universal definition, the CRC Committee has noted that the best interests rule
requires states to prioritise children’s interests when they are balancing different interests.
The substantive content of this prioritisation, on the other hand, is not well-defined.
Zermatten considers, for instance, that the principle of survival and development may
provide guidance on how the best interests principle can be put into action in concrete
terms

Convention on the Rights of the Child

- Adopted and opened for signature, ratification and accession by General Assembly
resolution 44/25 of 20 November 1989 entry into force 2 September 1990, in accordance
with article 49
- The United Nations Convention on the Rights of the Child, adopted by the General
Assembly on November 20, 1989, is a ground-breaking human rights treaty for many
reasons. It had the largest number of signatories on the day that it was opened for
signature.2 It went into force more quickly than any other human rights treaty;3 it
reached near-universal ratification by mid-1996;4 and it protects the entire range of
human rights: civil political, economic-social-cultural, and humanitarian.
- In addition, the Convention's monitoring mechanism gives unique powers to its
monitoring body, the Committee on the Rights of the Child.6 Unfortunately, these
achievements have tended to overshadow one of the Convention's most remarkable
characteristics: its protection of the girl child.
Controversies and Constraints in Implementing Human Rights (Relativism and Universal)

1. Give theory
2. Then give example which apply the theory

1. Define the theories of HR (principle, elements)

- a. Univerlism
- b. Relativism
- c. Asia values

2. Explain the existing western laws (like UDHR ECHR ICCPR ICESCR) and existing Asean
laws.

3. Relate the laws to the concept in (1)

4. See whether there is any other incompatible part, any debate or any challenging

UNIVERSALISM

Universalism holds that more “primitive” cultures will inevitably have the same system of
legislation and fundamental rights as the Western cultures. On the other hand, cultural relativists
hold an opposite view, but a similarly rigid perspective that a traditional culture cannot be
changed. This is similar to the issue of whether intolerance should be accepted by a tolerate
society, the conflict between universalism and cultural relativism is more complex than it seems.

In universalism, a person is a social unit and is guided by the pursuit of self interest. It is
significant to define the concept of ‘universal’ human rights. Universal theories claim that human
rights are inalienable, clear and applicable to all individuals. Such claims are related to Western
philosophy and natural law. Numerous scholars claim that human rights are “pre-political”.
Therefore, the human rights are unchangeable and will not be influenced by cultural or political
variation. The human rights are always considered to exist beyond the determination of specific
societies. Therefore, a universal standard is set in order to judge or determine any society.
Human rights are universal because they belong to all human beings. Nevertheless, in their
nature and operation, these universal qualities of human rights are uncertain and controversial.

Relativism

In cultural relativism, a community is the social unit and the community always come first.
There are no such concepts like individualism, freedom of choice, and equality. Many states
have exploited this doctrine, which denounce the impositions of western rights as cultural
imperialism. Such states ignore the fact that they have adopted the western nation state, and the
aim of modernization and economic growth. Cultural relativism is a very arbitrary concept,
societies are seldom unified in their perspectives on various matters, it is often those “who hold
the microphone that disagree”

Cultural relativism has continued to problematize the Universal Declaration of Human Rights
since its adoption in 1948. In actual fact, the issue of what universality might mean in a
multicultural world has troubled the project of United Nations Human Rights from the
beginning. For certain things that are bad in practice, no one will support them publicly.
However, for certain things that are good in practice, no one will condemn them publicly.”
Human rights cannot be truly universal unless they are not bound to cultural decisions which are
often not taken unanimously, and therefore cannot represent every individual that these rights
apply to.

- Abortion
- Analyse the above in light of the Universalist and Relativist debate.

An abortion is defined as a procedure to end a pregnancy. It uses medicine or surgery to remove

the embryo or foetus and placenta from the uterus. The debate on abortion has been one which
has been going on for a long time. The question of whether access to safe and legal abortion
should be a human right and the answers to this varying from one end of a spectrum to the other.

Universalist
- The universalist view is based on the argument that human rights are universal. By
universal it means that human rights are inalienable, self-evident and applicable to all
human beings.

Looking at abortion in light of the universalist debate. International human rights conventions
affirm that abortion should be a right. International human rights conventions like the ICCPR
show us this and the Human Rights Committee have also affirmed that by saying that
1. safe legal and effective access to abortion is a human right protected under the ICCPR,
including, in particular, under the right to life;
2. preventable maternal mortality and morbidity constitute violations of the right to life; and
3. the right to life under the ICCPR begins at birth.
Under the UDHR, Article 3 of UDHR had stated everyone will has the right to life, liberty and
the security of a person. By applying this article to the abortion matter, it will be applied to
protect the right to life of an unborn baby. As they claimed that, an unborn baby is also a life,
although it is still in the body of the pregnant women, but they have the right to claim the right to
life. Hence, under this article, unborn babies will have the right to life which means that the
abortion shall be restricted.

Under Article 5 of UDHR stated that no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.

As abortion is said to be a type of torture, therefore, abortion is said to violate Article 5 of

UDHR. Continue with Article 6 of UDHR, which stated everyone shall have the right to
recognition everywhere as a person before the law. As the unborn babies are killed by abortions,
they do not receive any recognition as people, even the fetus that would be viable and are killed
anyway are not considered human. This clearly violates Article 6 of UDHR.

In Malaysia, Art 5(1) of the Federal Constitution (FC) had protected the right to life of everyone.
This article clearly states that no one can deprive the right to life. Even though the definition of
“any person” was not defined in the constitution, it can be assumed that the person is also
included as a fetus as the fetus is also a life and their life should not be deprived albeit they are
still a fetus. However, there is some of them opined that since the article stated “no person” and
literally fetus could not be deemed as a person, thus abortion is legalized. CEDAW ratified by
Malaysia was silence and thus causing vagueness in Malaysia’s Federal Constitution in regards
to whether abortion was allowed.

The Ministry of Health Malaysia in the year of 2012 had published the Guideline on Termination
of Pregnancy which defined abortion as the action of expulsion or removal of an embroy or fetus
from a woman’s uterus when the embryo or fetus was unable to survive independently without
the mother. Such a period shall be where the embryo or fetus was only 500gms or was about 22
weeks of gestation. Such guidelines shall be read together with S. 312 of Penal Code where
under S. 312 of Penal Code, anyone including the woman herself who had caused a woman with
a child to miscarry was an offence if convicted shall be subjected to imprisonment.

However, there is an exception that if a medical practitioner registered under Medical Act 1971
was of the opinion in good faith that to continue to be pregnant will involve risk of the life of the
pregnant lady or injury to mental or physical health of the woman greater than pregnancy
termination and that the embryo or fetus should not be in the uterus of the mother for more than
22 weeks of gestation. It shows that abortion was still be illegalized in Malaysia unless in the
medical practitioner’s opinion in good faith that if abortion was not done, the pregnant lady
would be in danger of possible death or injury to mental or physical health of the woman and that
the embryo or fetus should not be in the uterus of the mother for more than 22 weeks of
gestation. Penal Code had further added under S. 315 that if there is any act done to prevent a
child to be born alive or die after being born intentionally shall on conviction liable for the
punishment of imprisonment for a term that can be extended up until ten years or with fine or
with both if such an act was not done to save the life of the pregnant woman.

However, Malaysia’s law on abortion was still subjected to uncertainty and lack of
interpretation.
In the situation of a young Nepalese girl named Nirmala, she was being convicted under S. 315
of Penal Code for an act done to prevent the child from being born alive, which was to abort. She
was sentenced to 12 months imprisonment. She aborted the child as she was afraid that she
would lose her job as a legal migrant worker after knowing that she was already six week
pregnant. Nirmala and the doctor were both being arrested. The doctor was of the opinion that
Nirmala was justified under law to terminate the pregnancy after considering the risk that
Nirmala would lose her job, to have to pay compensation to the employer and to be sent back if
found pregnant. The whole legal proceeding took eight months and she was later released on bail
but was unemployed and had to live in a shelter for migrant workers. She was later acquitted
since to force her to continue to be pregnant would cause risk to her life. Nirmala and the doctor
were lastly acquitted. Due to the uncertainty of Malaysia’s law on abortion, woman continued to
live in the life of criminal which might eventually prove that their action was legal. There were
also legal questions as to that if the situation was that the pregnant woman was in a risk of life,
could she terminate her pregnancy or should the doctor induce labour and deliver the foetus? The
law does not provide for such a situation.

In addition, babies were not always conceived in happy circumstances. A woman might be
pregnant if she was being subjected to the crime of rape. In such circumstances, with references
to Indian Law Medical Termination of Pregnancy Act 1971 (MTPA) where the statute was
introduced to provide a further extend of exceptions in the case of abortion.

Embryo or fetus conceived due to rape cases or anguished caused by unwanted pregnancy were
legal reason justifiable for legal abortion under “grave injury” which allowed a woman to abort
legally in Indian law. This is provided by the case of Chandrakant Jayantilal Suthar v State of
Jugara 2015 (8) SCC 721, where the Supreme Court of India ruled in favour of a rape survivor to
abort foetus so as to preserve the girl’s physician and mental health.

In Malaysia, we do not have sufficient interpretation from the Penal Code as well as cases judged
by authorised judges. It is still unknown whether a woman in Malaysia could abort if the child
was conceived under unwanted circumstances. It is only clear on the surface that explanation
given under Penal Code and Guideline on Termination of Pregnancy was that abortion was
illegal in Malaysia unless in the medical practitioner’s opinion in good faith that if abortion was
not done, the pregnant lady would be in danger of possible death or injury to mental or physical
health of the woman and that the embryo or fetus should not be in the uterus of the mother for
more than 22 weeks of gestation.

By taking into account the relevant international provisions and the cases and provisions that
give context to the Malaysian perspective. The three level of challenges must be considered in
terms of the debate between the universalist and relativist ideologies, with regards to abortion.
The first challenge is substance, it is argued by activists supporting the relativists' ideology that
there are different perceptions as to what is right and wrong. In terms of abortion, some religions
are against the taking of the life of a fetus as their religion requires a pregnant mother to carry on
with her pregnancy. This is not reflected upon by the UDHR and all the International Treaties
mentioned above, whereby it is stated that the right of a person only begins at birth, therefore it is
by implication that a fetus will have no rights until it is born. Countries that stand firm with their
religion may make laws that prohibit abortion but special circumstances should be allowed to
protect the mother that bears the child and she should afforded rights to continue or terminate the
pregnancy with regard to the circumstances. This would be the only way that the universalist and
relativist perspective could truly be balanced.

The laws on abortion

International
Abortion revolves around the right to life as provided under the UDHR, ICCPR, CEDAW and
CRC

Malaysian
Art 5 FC
Party to CEDAW and CRC
Abortion laws in Malaysia - prohibited under S. 312 - 316 of Penal Code

Such opinion should be done in good faith as provided under the case of Public Prosecutor v
Nadason Kanagalingam [1985] 2 MLJ 122. In this case, an obstetrician and gynaecologist was of
the opinion that abortion should be done to save a woman’s life since she was suffering from bad
or enlarged varicose veines which might cause pulmonary embolism. A medical experts had also
testified that abortion was necessary. However, the court held that the opinion of the obstetrician
and gynaecologist was not done in good faith as the court was not convinced that the accused can
only abort the woman’s child so as to save the woman’s life. The court reasoned that abortion
should only be the last resort so as to safe a woman’s life or from a mental wreck.

- CHILD MARRIAGE
The concept of child marriage varies depending on whatever country it occurs in. This is due to
the fact that different countries have varied laws regarding the age of majority. As a result, what
may be considered child marriage in one country may not be considered such in another.
Moreover, each country has its own unique perspective on child marriage. In the end, they can be
separated into two groups: universalists and relativists.

In examining the universalist position on child marriage, we should first identify what constitutes
a child in the context of universalism. The United Nations Convention on the Rights of the Child
is one of the international conventions protecting children's rights (CRC). The CRC defines a
child as "any human being under the age of eighteen years unless majority is acquired earlier by
the legislation applicable to the child." As a result, child marriages would be defined as
marriages involving a person or persons under the age of eighteen in the viewpoint of
universalism. Despite the fact that Art 1 states that the age of majority can be reached earlier, the
United Nations Committee on the Elimination of Discrimination Against Women and the United
Nations Committee on the Rights of the Child have advocated that the minimum age for
marriage be eighteen years old for both men and women, or boys and girls. These Committees'
requests demonstrate that the universalist viewpoint condemns child marriages, as it has
requested that the age of marriage be set at eighteen, which is the age under which a child has
become an adult.

Furthermore, because the majority of child marriages occur without the consent of the child,
particularly girls, the Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW) has taken steps to prevent this in the provision of Art 16 (1)(b) of CEDAW,
which states that member states shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations, and in particular shall
ensure, on a basis of equality, that: they the same unrestricted freedom to choose a spouse and to
marry only with their free and informed consent. As a result, the inclusion of a clause aimed at
preventing child marriages demonstrates that countries with a universalist viewpoint do not
accept child marriages. In this particular case of Madley v Madley & Anor, which was heard in
Australia and not to mention, which has ratified the CRC, demonstrates that it is of a universalist
perspective, which upholds the notion that universalism does not support child marriages.
Madley was sixteen years old when she was pushed by her parents to marry a man from Lebanon
she had only met once, and as a victim, she was afraid to object and frightened of her mother's
reaction if she did. The parents were then ordered by the court to refrain from attempting to
remove her from Australia. After evaluating the international provisions that are absolutely
hostile to the idea of child marriage, as well as the situation of a CRC member state opposing a
purported child marriage, we can deduce that the universalist viewpoint is completely against the
idea of child marriage.
On the other side, when it comes to a relativist perspective on child marriage, we might want to
examine Africa, which embraces relativism's ideology. The African Charter on the Rights and
Welfare of the Child is one of the statutes under question. The second article of the ACRWC
defines a child as "any human being under the age of 18." Also, according to Article 21 (2) of the
ACRWC, the minimum legal age for marriage is eighteen years. At first appearance, relativism
appears to support the universalist position on child marriage because of these clauses, which are
similar to those in the CRC. In actuality, however, relativism elevates culture above all else,
which might lead to these safeguards being overlooked for the sake of culture. This has been
proved to occur in several places of Africa. The African Child Policy Forum (ACPF) states in a
report titled "The African Report on Child Wellbeing 2013: Towards Greater Accountability to
Africa's Children" that several African countries have set the minimum age of consent below 18
or in discriminatory ways. This is most commonly done in Africa's more rural areas, where
traditional customs and religious beliefs still hold sway. In countries that embrace a relativist
viewpoint, culture is therefore more significant than the standards prescribed by universal human
rights.

Moving on, to illustrate relativism further, in Angola for instance, a girl can marry at the age of
fifteen and a male at the age of sixteen provided either of them receives parental agreement,
which is plainly in violation of the ACRWC. After taking into account the fact that provisions
prohibiting child marriages are not rigorously enforced and that there are numerous significant
gaps designed to allow child marriages in a relativist country, it is reasonable to infer that, while
relativism does not explicitly support child marriages, it does not condone them either.

Finally, when it comes to child marriage, universalism and relativism have very different
perspectives. Although attempts to address problems between the fundamental rights of a girl
and the promotion of cultural traditions go beyond this argument, the dispute between the
universality of human rights and cultural relativism provides a firm framework for clarity and
understanding. The process of ensuring human rights' cultural validity is critical to the successful
implementation and enforcement of children's rights in countries that supports child marriage.
The idea of codifying culturally legitimate human rights standards appears to be a realistic
technique for improving human rights authority. Ending child marriage involves tremendous
measures involving education, discussion, and awareness campaigns.

- LGBT

The human rights of LGBT individuals are often ignored, if not deprived, by the world
community. The LGBT rights consist of a full set of rights but the exercise of those rights
depends on which jurisdiction of state the LGBT person is subjected to. LGBT individuals are all
over the world being denied their human rights and not only by states considered as conservative
regimes by the human rights society, but also by modern democracies. Such an example is the
right to marry, a human right which in many states is not accessible for LGBT individuals.

Universalism -

- For example, the Charter of the United Nations (1945)1 encourages "respect for human
rights and for fundamental freedoms for all without distinction‖ in Chapter I, Article 1,
#3. Similarly, the Universal Declaration of Human Rights (1945)2 states in Article 2:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind."
- Art 14 ECHR: The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any grounds such as sex, race, colour,
language, religion, political or other opinion, national or social origin, association with a
national minority, property birth or other status.
- Article 8 ECHR: (1)Everyone has the right to respect for his private and family life, his
home and his correspondence.
- (2)There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
- UDHR Article 7: All are equal before the law and are entitled without any discrimination
to equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination. (But treating men and women equally does not necessarily lead to gender
equality in practice - structural disadvantages, not just equality before the law)
-

Relativism -

- In Asian values, relationships among the population of LGBTQ is strictly being

prohibited, Malaysia even criminalises it. In Islam, LGBTQ is strictly prohibited. Some
non-muslim also reject LGBTQ However, if according to UDHR, everyone is equal in
dignity and rights.
-

- Sex education

Sexuality is an integral part of human life. Children and young people have the right to
receive reliable, science-based and comprehensive information about it. Yet, sexuality
education in schools is a sensitive issue. Ever since it was first introduced in European
school curricula in the 1970’s, parents, religious leaders and politicians have been
arguing, often in highly polarised debates, about how much, and what should be taught at
what age.

Universalism -
- International human rights bodies have established that children and young people
have the right to receive comprehensive, accurate, scientifically sound and
culturally sensitive sexuality education, based on existing international standards.
These include the UN Convention on the Rights of the Child, the UN Convention
on the Elimination of all Forms of Discrimination against Women, the
International Covenant on Economic, Social and Cultural Rights and, at European
level, the European Social Charter and the above-mentioned Lanzarote and
Istanbul Conventions.
- The Convention on the Rights of the Child (CRC) provides that all children and
young people have the right to access information aimed at the promotion of their
mental and physical health (article 17), and that states have the obligation to
develop preventive health care, guidance for parents and family planning
education and services (article 24). They have the right to education that will help
them develop their personality, talents and mental and physical abilities (article
29).
- The Convention on the Elimination of the Discrimination against Women
(CEDAW) provides that states parties eliminate any stereotyped concept of the
roles of men and women at all levels and all forms of education, including
revising text books and school programmes (article 10 (c)).
- The Beijing Declaration and Platform of Action of the UN Fourth World
Conference on Women in 1995 addresses many of the same adolescent sexual and
reproductive issues as the ICPD and the CRC, as illustrated by the commitment to
“ensure equal access to and equal treatment of women and men in education and
health care and enhance women's sexual and reproductive health as well as
education”.
- The 1994 Cairo International Conference on Population and Development (ICPD)
Programme of Action, under the objective to achieve universal access to quality
education, underlines that gender sensitive education about population issues,
including reproductive choices and responsibilities and sexually transmitted
diseases, must begin in primary school and continue through all levels of formal
and non-formal education to be effective (paras. 11.5 and 11.9). ICPD also
outlines that "full attention should be given to the promotion of mutually
respectful and equitable gender relations and particularly to meeting the
educational and service needs of adolescents to enable them to deal in a positive
and responsible way with their sexuality", taking into account the rights of the
child to access to information, privacy, confidentiality, respect and informed
 consent, and in line with the rights recognized in the Convention on the Rights of
the Child, and in conformity with the Convention on the Elimination of All Forms
of Discrimination against Women.
- The World Health Organization and other UN actors agree that it is critical that
sexuality education be started early, particularly in developing countries, because
girls in the first classes of secondary school face the greatest risk of the
consequences of sexual activity, and beginning sexuality education in primary
school also reaches students who are unable to attend secondary school.

Relativism -
- The topic of sexuality is a taboo subject in Malaysia, but there are still reports indicating
on the increment of the misbehavior of sexual activities among Malaysian teenagers
-