Tuesday, October 7, 2008

The Government Man


The Government Man

Allow me to hypothesize with you this week.

Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.

Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?

A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.

I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.

On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.

Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?

The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?

Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.

Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.

Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.

Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.

The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.

We do not need the Government Man to tell us why.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 7th October 2008)
MIS

10 comments:

ash said...

Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.

Article 13
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Among a sad array of reasons, I think the above clearly shows us why present-day Malaysia cannot see itself a party to the Convention Against Torture (CAT).

A concise, eye-opening read is this joint press statement made in June this yaer by
GMI, SUARAM, and the Bar Council's Human Rights Committee. It calls on our government to ratify the CAT:

http://groups.google.com/group/518solidarity/browse_thread/thread/cb4d878245b6c8b5?pli=1

Anonymous said...

It is obviously wrong to detain RPK and many other ISA detainees indefinitely without the possibility of a fair trial.

The Americans are not perfect either, but I don't give a damn. RPK is a Malaysian, the Government is Malaysian, and Malaysians must do the right thing. Simple.

Surely the Government can charge RPK in court. I don't need a water-tight proof. Just give the man a chance in court. If there is even a hint that he is a national security threat, then, book him and detain him indefinitely under ISA. But if there is no such evidence or weight of evidence, then, release the man immediately!

Surely, for someone to be a threat to national security, there must be some links or some evidence? A terrorist-linked history perhaps? Knowledge to make, plant, detonate bombs perhaps? Any motive to blow up Putrajaya? Where and how is he a threat to national security?

Syed Hamid, we don't need water-tight proofs. Just try him in court. Come on!

mei1 said...

If every Government man has a guilty conscience in governing or doing things, there'll be world peace instead of war, intrusion, abuse of power, collusion, persecution, etc.
Perhaps we should learn from the great fighting spirit of the late JB Jeyaretnam that we should never give up hope in fighting for what is the best for the people & the country at large.

Antares said...

You're doing a great job of keeping us focused on the essentials, Imtiaz.
No two ways about it: THE ISA MUST GO and ALL DETAINEES UNCONDITIONALLY RELEASED. We the rakyat will not recognize or support any government that continues to defend the ISA.

North said...

Hi Malik Imtiaz,

That's a very nice article, thanks.

Please continue with your good work and remove ISA completely. I know that is a very hard work, your effort will be much appreciated.

Thanks.

Cheers,

Serene

tangerynne said...

The indefinite detention without trial of RPK and other detainees is yet another sad example of how the rule of law has collapsed here in Malaysia and has been supplanted by the Rule By Law, as you so aptly put it some time ago.

Our hearts and prayers are with you and RPK this October 22nd.

Tangerynne

Anonymous said...

Dear Malik Imtiaz,

Thanks for another good article.

Best regards,
CPK

Old Fart said...

If we were living in another age. Or if we were Germans living during the time of Hitler. Or if we were Malayans living during the times of the Japanese. Or if we were among the elite and the ordinary citizens or residents who were able to go on with our daily lives accumulating our prized possessions without raising the ire of the powers that be then maybe we might have become conditioned to the idea that these are necessary and acceptable ways and avenues open to the authorities. After all when the gladiators fought for their lives in the arena, for those who watched, it was part of their entertainment. They did not see the torture or the cruelty, did they?

The problem today is that a lot more of us have emancipated from the times when our arbaric instincts might have accomodated these things. In this country I ca see that from all walks of society people quietly approving whats happening to Raja Petra and all those other ISA detainees. After all what is the difference between those who found pleasure in watching the gladiators fight and those who approve of the ISA? There is still a certain "majority" who continue to vote the BN don't they? What is the difference between them and those for whom the gladiators gave their lives? Isn't it important for these people who matter to want to preserve their way of live?

Watching the movie Gladiator with Russsel Crowe as our hero, I used to think those watching must be scums of the earth.

Cruzeiro said...

Malik,
The Umno Govt does care about what is right or wrong - so this debate about UNDHR and what is right or wrong is misplaced.
For that matter, most Malaysians (although it may appear otherwise, with the sprouting of dissent and a resurgent Opposition) too don't give a fig about it.

Most malaysian are content to go with the flow, and still want the "peace & harmony" - what they have been brainwashed to believe in, which is apparently "the best".
Most wish to go on just ekeing out a living like "kerbaus". Most Malaysians are total selloutswhen it comes to integrity - they don't care about their neighbours, rights or truth.

All that matters is that 13 silver pieces in the money-bag .....
Taking the lead are the enslaved media and the academia.
Prime examples are Kalimullah, Wong Chun Wai, Imran Imtiaz Shah Yacob ........ (who many happen to confuse with you!)

We've got a long way to go before Malaysians become aware that their rights have been surrendered at the altar of prosperity. That they have been bribed into submission, and brainwashed into thinking that "submission to UMNO is their right".

To create this awareness though the PPPA & UUCA has to go first.
A free media and a free academia will get the people thinking again. Only then can we be rid of ISA - the one act which keeps Umno in power.
Is it any wonder why Mahathir hates the intellectuals?

Without these three evils acts (including Mahathir, four actually) which dominate the Malaysian landscape, the philosophically bankrupt BN will crumble like a house of cards.

galadriel said...

This post got me thinking a lot of thoughts. Thanks.

Btw, it is Abu Ghraib, n not Abu Gharib, I believe.

cheers.