MyConstitution
Introductory remarks by Edmund Bon, Chairperson of the Bar Council’s Constitutional Law Committee, on 29 October 2009 at the inaugural dialogue in MyConsti’s “Conversations” series with Anand Grover, the United Nations Special Rapporteur on the Right to Health.
Salam. Good evening.
We are fortunate to have Anand Grover, the United Nations Special Rapporteur on the Right to Health with us today. This is probably the first time a Special Rapporteur has set foot on the Bar’s soil.
As mentioned by the emcee and co-Deputy Chairperson, Syahredzan Johan, this is the inaugural dialogue in our “Conversations” series – one important component in the nationwide, 2-year MyConstitution Campaign being undertaken by the Constitutional Law Committee.
Allow me to place this dialogue in some context.
The right of everyone to the enjoyment of the highest attainable standard of health is recognised as a fundamental human right in international law. However, this right is not expressly provided for in our Federal Constitution. One place of refuge constitutionalists would seek to house the right to health is within Article 5 of the Constitution. In advocacy work with the authorities, efforts have also been made by human rights activists to read Article 5 liberally in a way that promotes the right to health.
But for some time now, judicial interpretation of Article 5 has been narrow and pedantic. The human rights approach has not found favour with our courts. Efforts to interpret Article 5 in consonance with international law have been thwarted by our judges. The Malaysian Judiciary has repeatedly held that Article 5 may only be invoked in circumstances where one is unlawfully restrained or detained (see Sugumar Balakrishnan). Article 5 does not extend to include the right to a livelihood (see Sugumar Balakrishnan), or the right to leave the country and to have a passport (see Loh Wai Kong). In other words, Article 5 does not “include all those facets that are an integral part of life itself and those matters which go to form the quality of life” (see Sugumar Balakrishnan).
Fortunately, a new trend is emerging. Justice Sri Ram, elevated in April 2009, is leading the charge. Speaking on behalf of what appears to be an invigorated Federal Court, Justice Sri Ram in Lee Kwan Woh adopted a purposive approach in the interpretation of Article 5, and rightly so:
When Article 5(1) is read prismatically and in the light of Article 8(1), the concepts of “life” and “personal liberty” housed in the former are found to contain in them other rights. Thus, “life” means more than mere animal existence and includes such rights as livelihood and the quality of life (see Tan Tek Seng).
In Shamim Reza, Justice Sri Ram read into Article 5 the right to be represented by competent counsel as forming part of the right to a fair trial. Loh Wai Kong and Sugumar Balakrishnan are no longer good law.
Encouraging as these developments might seem – on the international front nevertheless – Malaysia has yet to sign the International Covenant on Economic, Social and Cultural Rights 1966. Considering that Malaysia has achieved several of the Millennium Development Goals, and regularly represents to the international community an impressive track record on health issues, our Government should surely have no misgivings about signing the Covenant.
Ratification of the Covenant would entrench international law principles on the right to health as a normative attribute of our Constitution, and further, create legitimate expectations regarding the right to health that are legally enforceable (see Ezam and Ah Hin Teoh). The Bar urges the Government to sign and ratify the Covenant without delay.
Let us now hear and engage Anand on some of these issues.
The Bar extends a warm welcome to you.
Dated this 29th day of October 2009
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