Use and abuse of the human rights discourse
by Dr. Mazeni Alwi

If a columnist of a mainstream paper can be said to represent the general mood of the malaysian middle class, it is gratifying to note that we have suddenly woken up to the realization that we must defend our civil liberties as enshrined in articles 5 and 10 of our constitutions. It is uplifting to see that we can put aside our usual worries of how to make the most money in the shortest possible time and that life’s greatest dilemma is deciding which shopping mall to go to this Sunday. Is this for real? This has not been seen before in our sycophantic mainstream media with its fawning herd of columnists and commentators. They used to be very sensitive and touchy over the subject of fundamental civil liberties, always amplifying the stance of the authorities to the point of refusal to even look at the human rights discourse objectively, for it is not without deficiencies. I guess our aversion has much to do with the fact that we don’t like what we see in the mirror as far our human rights practices and record are concerned. We had a good argument at that time. We are asians, we are successful beyond our wildest dreams, and we have our “asian values”. With a sneer, we said that the human rights discourse is a western concept and its claims of universality is just a cover for the west’s hegemonic designs. They are just “jealous of our success”.

As a simple primer, the idea that human rights are universal and that human dignity is inviolable crystallized after the Nuremberg trials of Nazi war criminals into the Universal Declaration of Human Rights (UDHR), an ambitious combination of civil, political, economic, social and cultural rights adopted by the General Assembly of the nascent United Nations on 10th December 1948. Stretching back into history, such notions had their beginnings in the Habeas Corpus act and Bill of Rights of 17th century England, the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen.

But the cold war politics that followed not long after stifled the human rights discourse and stalled its evolution into an effective international mechanism that protects the dignity of man as both power blocs vied for the support of dictatorship that comprehensively violated them in Africa, South America, Asia and the Middle East. Although the twin Covenants on Civil and Political Rights signed during the cold war decades were supposed to have carried contractual weight, this became mere pious declaration with no real intention of abiding by them. Proxies of both blocs understood that their continued human rights abuses were expediently condoned if not encouraged by their respective masters.

With the collapse of communism, as millions of eastern europeans basked in the euphoria of their newfound liberty, there was a genuine determination to make human rights work, give or take the “end-of-history” triumphalism of the US. For a few years in the early 90’s the human rights discourse seemed free of ideological constraints and there was real optimism that the world could be on its way towards that vision of the Universal Declaration at its adoption in 1948. Nobody would dispute that the dignity man, the basic freedoms of thought, conscience and expression, and the right to life and liberty should be enshrined as “universal”. Also, as the euphoria was beginning to fade in the 1990’s and as the spectre of another ethnic cleansing was fast taking shape in europe’s backyard in the aftermath of communism’s demise, the determination to make the concept of universal human rights truly work took on a sense of seriousness and urgency – only for us to throw the spanner of “asian values” into the works. Universal human rights is a concept that the west is imposing on us in their quest for global domination, went our standard line (that is of course not an entirely hollow accusation as western governments are not averse to hypocritically use the human rights discourse as leverage whenever the occasion suits them).

Why not, we were at that time riding high as the tiger economies with near double digit growth for years in succession. I suppose hard work, loyalty and unquestioning obedience, though not exclusively asian traits, they are something that we east asians exhibit more that other third world peoples. But our runaway success was not because of that alone. It was a combination of those traits with hot money, unsavoury corporate practices, and also a political stability bought at the expense of some degree of suppression of civil liberties, thanks to novel new uses of draconian laws bequeathed by our former western colonial masters. We would not allow these embarrassing human rights issues to spoil our party. Our leadership and that of Singapore, China and Indonesia cleverly devised that “Asian values” argument to discredit human rights discourse as the liberal west’s agenda. Before the UN World Conference in Vienna in 1993, asian countries caucused and went to the conference with our declaration that universal human rights must evolve to accommodate the significance of national and regional peculiarities and various historical, cultural and religious backgrounds. The conference’s final declaration at the insistence of the asian bloc made no reference at all to the Civil Covenant or to individual rights such as freedom of speech and freedom of assembly (Crimes against humanity – the struggle for global justice” by Geoffrey Robertson, Penguin Books 2000). For the good part of the 1990’s and more so after the upheavals of 1998 our media commentators and columnists have been very creative at propagandizing this line – we have do away with some of these fundamental freedoms for the sake of development. We are Asians anyway, we have our own religions and cultural traditions, and those freedoms that we clamour for will only lead us to the path of western moral decadence.

After a posture of disdain and contempt towards the human rights discourse today some of our pundits have, out of the blue, become its staunch defenders – for the simple reason that it is a very useful and effective tool to undermine the place of the Sharia in muslim society. The Sharia enactments trample on our civil liberties, they violate articles 5 and 10 of our Constitution, wrote one columnist recently. But those who have never had any genuine concern for human rights and civil liberties are bound to reveal their ignorance or perhaps dishonesty when they misuse the discourse for a dubious end. Let us be reminded that article 5 is about the rule of law, the unlawfulness of detention without trial and the right to a legal counsel, whereas article 10 protects the freedom of speech, assembly and association. These are the fundamental civil liberties which the Islamic religious authorities actually have no jurisdiction through the Sharia enactments. Malaysia is unique in that it has 2 legal systems with the Sharia having a very limited jurisdiction and applying only to muslims, covering family law and specific areas of public morality. Therefore the accusation that the Sharia infringes on civil liberties guaranteed by articles 5 and 10 is laughable. It is precisely in these 2 areas of human rights that we as a nation have habitually been the target of criticisms which we cleverly deflected with the “asian values” rhetoric.

The strong men of asia, all of whom have now retreated from the seats of power, may have used “asian values” to silence critique and curb civil liberties in the name of development. The concept of universal human rights has evolved sufficiently such that no one today would disagree that freedom of thought and expression, the right to a fair tribunal, the unlawfulness of arbitrary arrests and torture are non-negotiable (except in extenuating circumstances, which even then safeguards against abuse of executive power must be in place). That our leaders could appeal to our values and traditions for a wholly different end and we all bought it was ingenuous. But is there absolutely no place for cultural relativism in this discourse?

There are some of us who treat the human rights discourse as contained in the Universal Declaration as a sacred religious dogma. But we must differentiate between fundamental civil liberties that allow no room for cultural relativism, which at any rate are compatible with the moral teachings of all authentic spiritual traditions, and those parts of the Universal Declaration (UDHR) which constitute no more than ideals or aspirations, and therefore allow for consideration of nuances of customs, traditions and level of economic development. For a traditional agrarian society, article 24 makes no sense, “everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay”. Homosexuals would take unkindly to section (3) of article 16 which says “the family is the natural and fundamental group unit of society and is entitled to protection by society and state”.

For muslims, beyond the scope fundamental civil liberties as per articles 19 and 20 (the basis of our articles 5 and 10), which are in concordance with Islamic principles, are we not entitled to be governed by laws some of which are derived from the religion’s teachings – the Sharia, if we were interpret article 18 correctly, “…freedom, either alone or in community with others, and in public or private, to manifest his religion or belief in teaching, practice, worship and observance?” (the part about the freedom to change his religion may not sit well with some muslims but that is another matter)

It is interesting that the campaign to repeal the Sharia and deny muslims their right of this public aspect of their religion as guaranteed by the constitution in the context of Malaysia’s multi-religious society is initiated and spearheaded by muslims. Perhaps knowing that they are unlikely to get much support from mainstream muslims, they turn to non-muslim NGOs and social activists who may be well-intentioned in the cause of advancing civil liberties and democracy. The use, or more accurately abuse of the human rights rhetoric is very persuasive to the unsuspecting. In this highly mediatized age, the simple minded – no matter how well-meaning, are quick to label people, in this context, muslims, as either “liberal progressive” or “conservative”, “morally uptight” or “enlightened”, “modernist” or “obscurantist”. But in real life things are much more nuanced than that. Wether the Sharia should be repealed or not is actually an internal muslim issue as its jurisdiction is limited to muslims. This should be resolved internally by honest discussion and dialogue between those having opposing views. Of course there will be entanglements between muslim and non-muslim parties at individual level which may complicate the Sharia administration, but this is something that is not impossible to resolve amicably. To drum up support from non muslims using the human rights bait is mischievous.

In truth, we are a people with no genuine commitment to values, and that is how we have excelled at double-speaking. When people accuse us of undermining fundamental civil liberties, we say the human rights discourse has no universality, a purely western agenda that seeks to corrupt our society with decadent western culture. We sought refuge in cultural relativism and appealed to our “asian values”. But we also want to be feted as “progressive and liberal muslims” by our friends and the Sharia which happens to encompass some of those “asian values” is such a sore and embarrassing anachronism that we don’t want to be associated with. That human rights thing has its uses after all.

Dr. Mazeni Alwi