Malaysia can learn from South Africa, whistleblower par excellence

 

On Jan 26, the International Court of Justice (ICJ) made world news headlines when it ordered Israel to comply with six provisional measures in that country’s ongoing conflict with Hamas.

It ordered Israel to refrain from acts of genocide, prevent and punish incitement of such acts, provide humanitarian assistance to Gaza, preserve evidence of genocide, report to the court on all measures taken to comply with the order, and cooperate with the court on difficulties in implementing the order.

In its ruling, the ICJ said Israel had breached the United Nations (UN) Charter by violating the principles of sovereign equality, non-intervention, self-determination and human rights of the Palestinian people as well as the “obligation towards all” arising from the UN Genocide Convention which prohibits acts of genocide.

South Africa, the country which brought the action, hailed the decision as a victory for international law and human rights, but Israel was outraged by it, accusing the ICJ of being biased and politicised, and insisting it was only acting in self-defence.

The ICJ is the principal judicial organ of the United Nations (UN) and was established under the UN Charter alongside six other principal organs, including the General Assembly and Security Council.

Article I of the Charter sets out the purposes of the UN, which include the maintenance of international peace and security, the elimination of threats to peace, and the suppression of acts of aggression or other breaches of peace.

Article II says that all member states are equal, will carry out their duties according to the Charter, and will neither use nor threaten to use their armed forces.

In my view, the Charter is wide enough to allow any nation to lodge a complaint to the Security Council and General Assembly seeking that the UN take cognisance of the genocide happening in Palestine and Gaza and pass orders for the imposition of sanctions on its perpetrator, and other relief.

Indisputable incidents of genocide and unlawful killing are clearly taking place, many of them broadcast in real time by reputable media channels. In such circumstances, the UN Charter should spring into operation as soon as a state moves any one of the seven UN organs. If there is a dispute as to whether genocide is taking place, a reference to the ICJ should only be a follow-up secondary action.

However, presently, there are multiple procedural difficulties with a member state moving the Security Council or General Assembly on matters involving the breach by another of Charter obligations and conventions.

It is comparatively easier to move a complaint of genocide, war crimes and crimes against humanity through the ICJ or the newly minted International Criminal Court (ICC). As the judicial arm of the UN Charter, the interim and final orders of the ICJ cannot be treated as hogwash by Charter signatories or its newer members.

Jurisprudentially, genocide and unlawful killings cannot be accepted as acts done in self-defence. The killing of civilians under the pretext of targeting enemies cannot be described as a permissible action within the spirit and intent of the UN Charter.

These days the UN Charter, its conventions, treaties and agreements, coupled with enforcement mechanisms available through the Security Council, General Assembly and ICJ have attained a form of sovereign status within which a rule of law framework is already in place.

Member states have an obligation to respect the Charter, but citizens of these states also have the responsibility to facilitate its upholding as part of their duty to the global population, and for peace, harmony and social justice to prevail.

It is a pity that no Muslim country has had the gumption to bring a complaint to the ICJ in support of their Muslim brethren in Gaza and to stop the genocide or unlawful killing of civilians, especially women and children.

In this respect, I salute the bold initiative of South Africa, who despite being surrounded by shameless fence sitters and cheerleaders, displayed impeccable advocacy skills to sustain social justice.

Our Muslim brethren must take cognisance of their duties and responsibilities as signatories to the UN Charter and in accordance with the religion of Islam to eradicate abuse of power and all forms of misconduct. After all, the principles on this subject as enshrined in the Quran and taught by the Holy Prophet are consistent with those of all other major religions of the world.

Muslim nations and their people are also under a duty to arrest recalcitrant Muslims who violate Charter and Convention obligations to achieve world peace and harmony. Shariah jurisprudence provides a simple methodology for this by encouraging and rewarding whistleblowers under the principles of Maroof (good deeds) and Munkar (bad deeds).

We know that the Almighty as per the Quran has placed an angel on the right and left shoulders, Kiraman and Katibin, to record good and bad deeds. Indirectly, this is a means to encourage and reward whistleblowers to perform their duty.

Likewise, all Malaysians are under a duty to arrest abuse of power, corruption, misconduct, etc., committed by those empowered to manage and run the organs of government and its agencies.

Islamic jurisprudence welcomes whistleblowing to sustain ethics, righteousness and avoid corruption and misconduct. However, Muslim countries are not known to encourage it as they fear it will affect politicians, many of whom are chameleons adept at concealing their corrupt practices.

The learned jurist Arman Neyazi said: “Whistleblowing is a form of goodness, righteousness, justice and truth that emanates from God’s command to enjoin good and forbid wrong (Amr Bil-Maroof wa Nahi an al-Munkar). Islam revolves around ethics that guide people to Amr-bil-Maroof and commands to be careful of Nahi an al-Munkar.”

In my view, the rulers and government must encourage, protect and reward whistleblowers. Its failure to do so, and the prevalence of abusive laws such as the Official Secrets Act 1972, has oftentimes allowed those in power to cover-up the government’s wrongdoings, propelling Malaysia into the status of a failed state.

The time has come for the Malay rulers to initiate the introduction of an effective whistleblowing mechanism that will eradicate Malaysia once and for all of widespread corrupt practices in politics, business and daily life.

Recently, South Africa shone on the international stage as a whistleblower par excellence. Malaysia must have the courage to be one, both at home and abroad.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.