In March, former UN High Commissioner for Human Rights and judge Navi Pillay delivered a public lecture organised by Penang Institute titled “Affirmative Action and Human Rights: Who Wins and Who Loses”. Here, we present touches of Pillay’s inspirational life and her views on the state of human rights in Malaysia.
E.E. Cummings said, “It takes courage to grow up and become who you really are.” This is true for Navanethem (Navi) Pillay, who is no stranger to the shadow of oppression. A South African of Indian-Tamil origin whose grandparents were brought as indentured labourers from India to work in the British-owned sugar cane plantations, Pillay’s parents had little prospect of escaping the clutches of poverty.
Together with her seven other siblings, she grew up in a society segregated under the Apartheid regime. As a minority Indian group, along with the majority black population, they were denied fundamental human rights. Despite this Pillay forged a life of possibilities amid daunting discrimination, graduating with a law degree and working for over 50 years as a lawyer. She spent 29 years defending anti-Apartheid activists in South Africa before becoming a judge of the UN Tribunal Court of Rwanda. She presided over that court for eight years before becoming a judge of the appeals division in the International Criminal Court. From 2008 to 2014, she served as the fifth UN High Commissioner for Human Rights.
In a recent interview with Lacuna magazine, Pillay described how as a child living in the Tamil-populated Clairwood area of Durban she had dreamed of becoming a lawyer, but a teacher told her she needed “a wealthy father and a lot of money to study law”. Later on, when she applied for jobs at law firms she was told that “a white secretary won’t take instructions from a black person”. She was also ridiculed by her male peers for starting her own law firm despite being a woman.
Pillay at the “Affirmative Action and Human Rights: Who Wins and Who Loses” public lecture in March.
Ironically, due to both state capture by Umno elites and the suppression of competition under the NEP, ordinary Malays still have a dimmer prospect in social upward mobility compared to the Chinese and Indian minority groups who are excluded from the benefits of its affirmative programmes.
But Pillay, acquainted with drawing strength from adversity, has always looked hardship in the eye. She recounted her struggle for emancipation at Penang Institute’s “Affirmative Action and Human Rights: Who Wins and Who Loses?” public lecture, which featured panellists Dr Muhammad Abdul Khalid (chief economist at DM Analytics), Wan Saiful Wan Jan (CEO of IDEAS) and Tan Sri Simon Sipaun (former state secretary of Sabah).
During the lecture, Pillay was clear on one thing: people need to be treated equally. “It really gets into your psyche and your soul, the feeling of not being good enough. We had to learn to have a sense of confidence – that’s what discrimination and systematic institutionalised racism does.”
As UN High Commissioner for Human Rights, Pillay had the mandate to promote and protect the rights of people around the world. For example, in 2014 she led the UN’s fact-finding mission to investigate atrocities and abuse associated with the civil war in Sri Lanka, where she criticised the Sri Lankan government for its inaction over the loss of 100,000 lives at the end of the conflict, and possibly tens of thousands of civilian deaths in the last months of battle. In response, the Sri Lankan government hit back at Pillay, accusing her of personal bias and fitting the processes of investigation to a preconceived trajectory. Unfazed, Pillay continued the investigation even as the government refused to cooperate.
Malaysia, with its political idiosyncrasies and tendency to make headlines for the wrong reasons, has also in the past caught Pillay’s attention: “During the six years I served as UN High Commissioner for Human Rights, I made many requests to visit the country but no date was apparently suitable,” Pillay says. While she applauded Malaysia’s participation in the Human Rights Council and the government’s invitation for special rapporteurs to carry out fact-finding missions in the country, she also expressed concern at the prolific frequency of human rights violations. “Malaysia has received hundreds of recommendations from other states. They also hear from local NGOs and other countries. If you look at the report from the treaty body committees and the special rapporteurs who come here, they all report the lack of civil and political rights, the lack of freedom of speech and assembly, and detentions – and this is disturbing.”
Pertinent to the report by the Universal Periodic Review (UPR) which looks at the human rights records of all 193 UN member states is the mistreatment of indigenous peoples in Malaysia, whose livelihoods and personal attachments to traditional land are wrecked by profit-driven development projects linked to logging operations, palm oil plantations and energy-intensive industries, particularly in Sabah and Sarawak. Pillay vehemently emphasised that Malaysia should abide by the standards delineated in the UN Declaration on the Rights of Indigenous Peoples by making the effort to gain prior and informed consent of indigenous peoples on any change to their lands and territories.
This discrimination of vulnerable groups like the Orang Asal comes hand in hand with a selective approach to human rights that Malaysia seems to adopt. With the instituted affirmative action in the National Economic Policy (NEP) that allows Malay entitlement to education, public and private sector employment, business licenses, equity ownership, and acquisition of property, Pillay wryly observed that “ironically, due to both state capture by Umno elites and the suppression of competition under the NEP, ordinary Malays still have a dimmer prospect in social upward mobility compared to the Chinese and Indian minority groups who are excluded from the benefits of its affirmative programmes.”
Pillay also lamented that close to six million migrant workers, refugees and asylum seekers are in an extremely vulnerable position. Due to their exclusion from the relevant affirmative action policies and from the protections afforded in the Constitution, these groups are denied citizenship rights and their children born here are at risk of not being registered.
Nelson Mandela. In 1995 Mandela appointed Pillay to the Supreme Court in South Africa.
The burden of discrimination that Pillay experienced in South Africa was threefold – she was a minority South African Tamil, a woman, and a member of a poor community in an Indian section of Durban. Growing up segregated under the law and denied access to public amenities like parks and beaches, her mother pushed her way along the long queues to ensure Pillay’s admission into primary school. Her community, who was told by her school principal that “we have a girl here with potential, let her go to university,” raised funds so she could further her studies.
“My story is a combination of affirmative action as well as individual effort and perseverance,” says Pillay. She became the first woman of colour to open her own law practice in the province of Natal. But the colour of her skin, however, prevented her from entering a judge’s chamber when she worked as a lawyer under the Apartheid regime. She exposed torture and the poor conditions of political detainees perpetrated by the police, defending her own husband in addition to representing men imprisoned on Robben Island, including Nelson Mandela himself. Owing to her successful appeal to the provincial court, Mandela and other inmates were granted basic legal rights. In 1995, when Mandela appointed her to the Supreme Court in South Africa, she triumphantly entered the judge’s chamber – her own chamber – for the first time.
Jacob Zuma, President of South Africa.
Having experienced structural inequality, Pillay knows first-hand that the economic growth of a nation is neither sustainable in the long term nor morally acceptable when it is accompanied by significant inequality, exclusion of minorities, repression of freedom and environmental degradation. Pillay stresses the significance of the Sustainable Development Goals; the action plan is a set of aims that member countries pledge to fulfil, adopted in 2015 by member states of the UN, including Malaysia. The specific aims of building inclusive societies, promoting gender equality and ensuring the long-term survival of the planet and its natural resources demonstrate that a country’s development is not merely a question of GDP numbers or statistics.
South Africa and Malaysia
Pillay draws parallels between the dismal results of the NEP and South Africa’s disillusionment with the Black Economic Empowerment (BEE) programme.
The BEE was a racially selective programme and was designed to correct the resultant and entrenched disparities of the Apartheid regime that saw minority white rule, institutionalised racial segregation and the deprivation of the rights of black South Africans.
However, it has led to infuriating consequences: the replacement of well-qualified workers in the economy with those who are less qualified but of the “right” colour, the granting of tenders to politically connected black capitalists, and even the phenomenon of “fronting”, where devious companies pretend to be black companies. Similar to Ali Baba schemes in Malaysia where, due to the NEP, the government preferentially offers contracts to Malay companies who subcontract the real work to more skilled non-Malay firms, the BEE, too, has resulted in companies who win government tenders due to their BEE credentials but then approach white-owned companies to implement the job.
“But one key difference between the two countries is the independence of the South African judiciary system,” notes Pillay. Recently, the high court in Pretoria ordered South African President Jacob Zuma and the ministries of justice and international defence to retract their notice of withdrawing South Africa from the International Criminal Court (ICC). In October South Africa had notified the UN of its intention to revoke its ratification of the Rome Statute, the ICC's founding treaty. This decision appeared to have been a response to the failure of the South African government to abide by an ICC order to arrest Sudanese President Omar al-Bashir during his visit to South Africa for an African Union Summit. (The Sudan President has been charged by the ICC with war crimes, crimes against humanity and genocide.)
Championing Gender Equality
Being a fiercely impassioned advocator for justice, Pillay was elected to serve at the International Criminal Tribunal for Rwanda (ICTR); she was the only female judge there.
Rape is recognised as a war crime but has never been prosecuted except in the Military Tribunal for Japan. A game-changer as always, Pillay’s presiding over the ICTR in 1995 resulted in an unapologetic definition of sexual violence during conflict as a tool of genocide and a means of destroying a particular group or community. Her role in the ICTR featured the conviction of Jean-Paul Akayesu for genocide and crimes against humanity, including rape – at least 2,000 Tutsi Rwandans had been killed under his watch, where the torture and murder of Tutsi people was the norm and repeated sexual violence towards women widespread and systematic.
Houses of Parliament in Cape Town, South Africa.
In line with efforts at achieving gender equality, Pillay also worked with women ravaged by domestic abuse in South Africa in her first cases as a young lawyer. As she listened to the numerous visceral accounts of women battered by their husbands, the prevalence of domestic violence that surpassed individual reports haunted her, propelling her to speak about the unspeakable. Talking about such delicate issues was uncommon back then, but Pillay defied the stigma surrounding domestic violence and went further, courageously campaigning on behalf of the victims of domestic abuse.
“I’m concerned about women’s rights,” Pillay says. “Generally, women are always the most vulnerable, and they are the ones responsible for bringing up the children, ensuring there’s food in the house.”
A survey conducted in 2016 found that nearly one in five South African households ran out of money to buy food in the past 12 months. “In South Africa, (former first lady) Zamele Mbeki and a number of others started a women’s development bank,” says Pillay. Formed in 1991, it provides microfinance to women inflicted by poverty and has been combating the corrosive effects of living below the poverty line (which more than half of South Africans do), or subsisting on conditions that qualify as extreme poverty (10% of South Africans), getting by on less than US$1.25 a day.
“It would be a good idea to set up such a bank here in Malaysia,” suggests Pillay. “It encourages women to start their own small businesses. They may need a small bank loan to start, or even own a plot of land. They make their arts and crafts and they want to be able to sell this and get online, so they need access to the internet and know how to use it. There is a need for sharing skills and knowledge, so opening up the market for them is important.”
Mentorship, where “older women who have succeeded open up doors for younger women” is a viable alternative to a competitive patriarchal system that pits women against each other. The willpower that Pillay showed in rising to the top of the male-dominated field and her irrepressible persistence as a woman of colour who knocked on doors that were firmly shut to her reveal the possibilities of the human spirit in overcoming tremendous odds.
Celebrating Pillay’s legacy is to recognise that the oppressive asymmetries of power do not necessarily entail grudging acceptance – one does not simply watch from the sidelines.
Cheah Wui Jia teaches English at Han Chiang College. She enjoys looking at how individual interpretations of texts are mediated by language, relationships of power and societal structures.