A COMPARATIVE PERSPECTIVE
By: Sonny Zulhuda
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Khilafah al-'Alam al-Islami |
“O mankind! We created you from a single (pair) of a male and a female,
and made you into nations and tribes, that ye may know each other
(not that ye may despise each other).
Verily the most honoured of you in the sight of Allah is (he who
is) the most righteous of you.
And Allah has full knowledge. And is well-acquainted” (Al-Hujurat,
XLIX:13)
THE UNIVERSAL IDEA OF HUMAN RIGHTSHuman rights are those rights which are considered very basic and fundamental inherent to the existence of human being. The notion of human rights sees every born man in this world shall possess the same rights exercisable by himself. Those rights are fundamental because they guarantee the human’s enjoyment of life –and quality of life, for that matter, to be preserved. Human rights are also basic because their maintenance will allow other rights to be enjoyed by human. And, these rights are also inherent due to the fact that their existence solely depends on the existence of human themselves. In order to be eligible to enjoy them, neither agreement nor registration is needed, thus being born as human is the only requirement. All humankind in this world, consequently, are possessing these rights regardless race, tribe, gender, origin, or any social and political status.
Among considerable nature of the emergence of human rights is that, the notion of human rights has shifted from the domain of domestic law of each and every individual state to that of international law and global concern. The idea is that all human beings are one family, thus the basic rights arise there from shall remain one single-issue irrespective political and territorial borders. It has been often propounded that human rights notion is among the characteristic of globalization to the extent that they are very identical to each other. This situation has been in many occasions the source of inconvenience of many developing nations and the new economies like China, Thailand, Malaysia, as well as Indonesia. These countries had been somehow known to be against deliberate impact of the globalization. They argued that the globalization shall not be interpreted as totally globalized world, for the advantage will only be enjoyed by developed countries on the expense of the developing ones.
Nevertheless, as the rights of individuals used to be solely subject to the rule of the sovereign in each country, the current trend is different. Now in many cases involving human rights violation in a country, international community often enters to the shoes of the government of that country. After all, it is consequently understood that the states in this regard had been led to give away part of their sovereignty once they sign up to join the world community organization such as the United Nations and the European Community.
Hence, the United Nations as the sole administrator of world affairs of global interest had ultimately been busy in ensuring the protection of human rights through its instruments like the Universal Declaration of Human Rights 1948 (UDHR) or through its enforcement body of the UN Security Council. This is the present scenario that we have today. To what extent that role has been carried our successfully by the UN is still something very questionable to everyone.
What are those rights? To surprise of many, human rights are actually much wider than what people normally think of. The currently most celebrated human rights, like equality before law, freedom of expression, and freedom of association, are perhaps only small part of the whole notion of human rights. Writers commonly refer to human rights as belonging to one of three generations. The first generation consists of those civil and political rights that derive from the natural right philosophy of the late Eighteenth Century of Rousseau and other that have traditionally been given priority by Western states, and of course, given more attention by the mass media. This is why one is understood if he thinks that these civil and political rights are identical to the whole human rights notion. In the domain of this first generation are, inter alia, right to life, right to a fair trial, freedom of expression, and the abolition of slavery.
The second generation evolves later in the twentieth century. They are those economic, social and cultural rights such as the right to work, the right to social security, the right to an adequate standard of living and the right to education. Compared to the first generation human rights, these rights are of lesser international attention. The reason being is that because the rights under this second generation have little to do with the international community and their protection lies much on local measures. Further, the international measure of enforcement is so much obvious and ready against the violation of first generation rights, more than that against any violation of this second generation’s.
The last three decades see the dynamic emergence of human rights concept. There is thus the so-called third generation human rights which include right to development, right to a protected environment, and right to self determination. These rights are more of collective nature. Thus the rights are dealing with the state of a nation or community of public rather than the individuals. The right to self-determination has become major phenomena after the era of colonialism in the first half of twentieth century. One whole nation are given right to express their say on the status of their country. The resent case in East Timor is an example where the people voted to separate from the Republic of Indonesia and form an independent state.
Those are the types –or aptly be said as classification- of the human rights as we derive from the current writers. It is observed rather, that this classification remains academic more than practical.
COMPARATIVE OBSERVATION ON THE PROTECTION OF HUMAN RIGHTS
In the discussion to follow, a brief observation will be made on the provisional protection of human rights in the current practice. A comparative method will be employed to analyze the international law provisions, in this case is the Universal Declaration of Human Rights 1948 (UDHR) and the constitutional provisions of sovereign states, specifically Malaysia. In the last part reference is also made to the Islamic concept of human rights protection as reflected in the Cairo Declaration on Human Rights in Islam. This is ultimately to see how Islam perceives, and thus protects the human rights compared to the civil law measures.
1. HUMAN RIGHTS IN THE INTERNATIONAL LAW
The international law has proved successful enough to grab the control on the human rights protection from the hand of states’ sovereigns. A Dixon puts it (1995:277), by far the greatest impact of human rights law has been to erode the absolute control (over the human rights administration) which a state formerly exercised over its nationals. Thus, Art. 2(7) of the United Nations Charter which provides that ‘nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’ has not inhibited the UN in its attempts to develop a comprehensive Code of human rights. Simply, as Dixon puts it (p.277) developments since 1945 have lifted the question of human rights out of the domestic plane and removed it to the jurisdiction of the international law.
The preamble to the UN Charter in 1945 reaffirms that ‘a faith in fundamental human rights, in the dignity and worth of the human person, in equal rights of men and women and of nations large and small’. Again, Art. 55, the UN is committed to promoting, inter alia, ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. In the light of this commitment, in 1948 the General Assembly adopted Resolution 217A, being a Universal Declaration of Human Rights (UDHR).
The UDHR consists of 30 articles, containing a list of economic, social, cultural and political rights, almost comprehensively. It provides in Art. 2 that ‘everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind’. It is proclaimed by the General Assembly that this UDHR is to serve ‘as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall strive by teaching and education to promote and respect these rights and freedoms’.
However, due to the general rule for Assembly resolutions applicable, that Declaration was not intended to create binding legal obligation. Nevertheless, an optimistic view of the effect of the Universal Declaration of Human Rights is that it generated a general principle of customary international law to the effect that states were bound to respect the human rights of their nationals.
2. CONSTITUTIONAL PROTECTION ON HUMAN RIGHTS
Major constitutions in the world today do incorporate provisions on the protection of human rights or fundamental liberties. This constitutional guarantee is imminent because the constitution is the mother of all legislation, from which all subsidiary legislation are derived, and in the frame of which they are to be interpreted.
In the context of Malaysia, Paragraph 161 of the Report of the Federation of Malaya Constitutional Commission (Reid Commission) in 1957, recommended that the Constitution included ‘certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life’. Though the Commission felt that the rights were already established throughout the region, they felt that there must be constitutional safeguards because of the presence of ‘vague apprehensions about the future’.
According to Kevin Tan wrote (1997:514), the rights enshrined in the Malaysian Federal Constitution reflect heavy Western influence in that they are primarily traditional civil-political rights which are ‘negative’ in nature, i.e. they define a sphere of individual autonomy into which the state can not intrude. Essentially these rights are rights to life and liberty (art. 5), rights to property (art. 6), freedom of speech (art. 10), freedom of movement (art. 9), equality before law (art. 8), and freedom of religion (art. 11). In short, it appears that the Malaysian Federal Constitution had reflected almost all essential human rights as protected under the UDHR.
3. HUMAN RIGHTS IN ISLAMIC CONCEPT
The protection of human fundamental rights is an inherent principle of Islamic teaching since Allah has created human in the best of moulds. This noble position is required for the human’s vicegerency of Allah in this world. And this in effect leads to the necessity of the protection of human’s fundamental rights. It is to highlight here that the concept of human rights rests on the normative predicate that human beings have intrinsic worth and dignity. This reflects the principle of human dignity indicated by Qur’an (Chapter 95:4) as we said earlier. Human dignity necessitates the protection of their rights. Be it fundamental or at lesser importance.
Such concept when explained further reveals how it could emerge. In other words, we have to be clear how these rights take place. Indeed, they are granted by God. This divine gift is important to remember to keep one clear on what he has to do with his fundamental rights. They are there to be utilized for the sake of worshipping Allah, and they are not open to alienation. As Abul A’la Mawdudi (1983:15) writes, that “the rights granted by kings or legislative assemblies can be withdrawn as easily as they are conferred, but no individual and no institution has the authority to withdraw the rights conferred by God”.
Comparing this rights protection with UDHR 1948, Mawdudi (p.16) writes that, while the rights under the UDHR are not obligatory on anybody, the rights sanctioned by God are an integral part of the Islamic faith, and all Muslims have to accept, recognize and enforce them. This show how fundamental is the inherent nature of the human rights in Islam.
CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM
From the 19th Foreign Ministers’ Summit of the Organization of Islamic Conference (OIC) which was held in Cairo, Egypt on 31 July to 4 August 1990, the Declaration on Human Rights in Islam was constituted. The objective of which is to provide guidelines for Islamic countries concerning the protection of human rights in respective countries. The declaration is very significant in highlighting the Islamic approach through its textual sources in dealing with the protection of human rights.
The Declaration believes that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments. Accordingly it declares that every person is individually responsible and the Ummah collectively responsible for their safeguard.
This Declaration consists of 25 articles stipulating those essential human rights like equality in dignity and rights being the subjects of God (art. 1); right to life (art. 2); women’s rights (art. 6); children’s rights and good standard of living (art. 7). Whereas the equality before the law is also provided in art. 8; right to liberty (art. 11); freedom of movement (art. 12); right to work (art. 13); and right to ownership (art. 15).
Indeed, the content found in this Cairo Declaration might not be totally new, for it has incorporated almost all essential human rights as stipulated also in the UDHR. (There are however some discrepancies between the two which will be touched later). This Declaration is nevertheless very significant for two reasons. It is significant to show that in Islam the concept of human rights as understood in modern paradigm is not foreign notion. All these rights as inherently granted by God can be appreciated from the sources of Islam, primarily the Qur’an and Prophetic traditions. The other reason why this Declaration is significant is that because this stipulation can contribute to wider achievement in protecting human rights from violation. It is to be admitted that in many Muslim countries, the violation of human rights is evident. By this declaration by Muslim countries themselves, the government can be pushed to provide better standard of protection.
CAIRO DECLARATION Vis a Vis THE UNIVERSAL DECLARATION
When one were to compare between the Universal Declaration of Human Rights (UDHR) 1948 and the Cairo Declaration on Human Rights in Islam 1990, three things deserve to be borne in mind. First is that the different perspectives are used in perceiving the human rights notion in each of these declarations. The UDHR is very much colored by the concept of natural law from the Greek philosophy, while the Cairo Declaration is based on the Islamic concept and Islamic worldview. In the former, man-made law is the source, while in the latter it is divine law that serves as the source of human rights.
Secondly, the UDHR presumes inherent human right due to the birth per se, the Cairo Declaration, on the other hand, affirms the inherent human rights in a person for his status as God’s vicegerent in this world. Thus, the recognition of human rights in Islam is not for the sake of right only, but further the rights are granted in order for human to serve Almighty Allah. The concluding articles in both declarations confirm this proposition. Article 30 of the UDHR stipulates that ‘nothing in this Declaration may be interpreted as implying for any sate, group or person any right to engage in any activity or to perform any act aimed at the destruction of any rights and freedoms set forth herein’. Here the preemption is made in regard with the frustration of those very rights and freedoms solely and ultimately. In the Article 25 Cairo Declaration an ultimate submission is made I reference to the divine law when it stipulates that ‘the Islamic shari’ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration’.
Observing each and every rights stipulated in both declarations, it is found that almost every essential rights are shared, even though they must be seen with their different perspectives respectively. However, the right to freedom of peaceful assembly and association which is in art. 20 of UDHR, is not embodied in Cairo Declaration. And conversely, the specific exclusion of usury (riba) in the Cairo Declaration does not have place in the UDHR.
Last but not least to be touched in this paper, is how these declarations are equipped by instrument to ensure the implementation of the rights and to measure any future violations. As we know, the UDHR is a UN-governed covenant and falls in the domain of the international law. In one way or another, the UN can do many things to uphold any enforcement, and to act against violations. The Cairo Declaration, on the other hand, is poor in term of enforcement body. In this sense it is far less practical than the UDHR. That is why the Cairo Declaration will remain more as the general guidelines for Muslim countries without any binding force.
Human rights have moved from absolute domain of states’ sovereign to the realm of international law, enforceable by international bodies. This international ‘intervention’ is justified in order to have a uniform standard, code and implementation. The UN shall have more effective ways to anticipate any violations worldwide. In this respect, the only thing the UN can not do is upholding the justice and fairness in the wake of violations of human rights. There have been so many interests and influencing power engaged in the UN administration so as to make it subject to the will of big powers of the world.
It submitted here that Human rights are very noble notion that has to be preserved and protected in the course of human life. Human rights violation deserves condemn regardless whosoever commits it. For the violation of one single person is actually demeaning the value of mankind in general.
The concept of human rights are existent in both civil and Islamic law concepts, though with some fundamental differences as to the objectives and nature of those rights vis a vis human position in this world. It is obviously shown that the Islamic concept of human rights are more genuine and closer to the truth of human rights, that is due to the fact that Islam perceives human rights more as a tool towards most ultimate objective of human life, i.e. to serve Almighty Allah’s will.
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