In relation to the Petitioners' plea for the court to apply the international human rights standards (the 1948 Universal Declaration of Human Rights and the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment), the court upheld the goverment opposition to this plea:
Encik Tun Majid bin Tun Hamzah, Senior Deputy Public Prosecutor for the respondent started his rebuttal by stating that reference to international standards set by the 1948 Declaration and several other United Nations documents on the right of access cannot be accepted as such documents are not legally binding on our Malaysian Courts. For this submission he relied on the case of Merdeka University Berhad v. Government of where the 1948 declaration was described as a non legally binding instrument as some of its provisions depart from existing and generally accepted rules. “It is merely a statement of principles devoid of any obligatory character and is not part of our municipal law.”
Merdeka University Berhad was decided in 1981. This begs the question as to whether acceptance of the 1948 Declaration as a non legally bindinginstrument has changed by virtue of s. 4(4) of the Human Rights Commission of Malaysia Act 1999. In my opinion the status and the weight to be given to the 1948 Declaration by our courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements for treaties. By its very title it is an instrument which declares or sets out statement of principles of conduct with a view to promoting universal respect for and observance of human rights and fundamental freedoms. Since such principles are only declaratory in nature, they do not, I consider, have the force of law or binding on Member States. If the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which Member States can ratify or accede to and those principles will then have the force of law. The fact that regard shall be had to the 1948 Declaration as provided for under s. 4(4) of the Human Rights Commission of Malaysia Act 1999 makes no difference to my finding. This is so as my understanding of the pertinent words in the sub-section that “regard shall be had” can only mean an invitation to look at the 1948 Declaration if one is disposed to do so, consider the principles stated therein and be persuaded by them if need be. Beyond that one is not obliged or compelled to adhere to them. This is further emphasised by the qualifying provisions of the sub-section which states that regard to the 1948 Declaration is subject to the extent that it is not inconsistent with our Federal Constitution.
From opinion written by Siti Norma Yaakob FCJ, page 385-386, Current Law Journal, 2002, 4 CLJ
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