The Right to the Highest Attainable Standard of Health: Failings in Human Rights, Drug Law, Disability Rights and Health

In an article published in the online newspaper the Malaysian Insider dated today, 25 January 2011, Phil Robertson from Human Rights Watch stated that ‘the Malaysian government is all talk and no action when it comes to human rights.’ [Accessed 25 January 2011.] The article goes on to speak about detention without trial under the ISA, bans on peaceful protests, non-transparency and non-independent press and harassment of journalists, which are all highly important issues that the government must address. What the article didn’t mention, however, is the human right to the ‘highest attainable standard of physical and mental health’, which is enshrined in Article 12.1 of the International Covenant of Economic, Social and Cultural Rights (ICESCR).

The average Malaysian on the Klang minibus would argue that this right is adequately protected by the Malaysian government as there is access to hospital services, over the counter medicines, and health information. However, we’ve got to think about this right in terms of marginalised communities: disabled persons, persons at risk for mental illness and persons suffering from mental illness and related comorbidities, and persons who use drugs and persons who have been or are being detained for drug offences, among others.

Current punitive policies means that persons who use drugs do not get access to healthcare such as methadone replacement therapy and treatment for various other comorbidities that occur as a result of their being incarcerated and/or stemming from their drug use, such as psychiatric comorbidities, HIV/AIDS, and polysubstance use that they pick up in prisons. And that is in addition to them being subjected to police questioning and interrogation while undergoing withdrawal symptoms, and being mistreated and manhandled by police. These are all well-documented abuses that happen across Southeast Asia and other places throughout the world.

In addition to that, the disability rights movement could well benefit from the signing of the ICESCR by way of advocacy for integration of disabled persons into society (with special emphasis on the workforce), creating wheelchair accessible walkways and walkways safe for navigation of blind persons, ensuring equal access to education and ensuring access to comprehensive, integrated health services, among others.

So what is the big problem in relation to utilising human rights in advocating for change of drug policy and disability rights in Malaysia? Well, number 1 is encapsulated in the words of Mr Robertson above. Number 2 resonates in one astounding and incredulous fact: that Malaysia has not ratified nor signed the ICESCR.

Malaysia is one of the few countries that have not signed nor ratified the ICESCR; even Indonesia and Thailand have signed it. This would put Malaysia in the same boat as Oman, Botswana, Myanmar, the Western Sahara, Haiti, Saudi Arabia, the United Arab Emirates, Somalia and Taiwan.

What can we say to this? Are cheers and yahoos in order? Especially since we’re aiming for developed country status by the year 2020?

Let’s think about this. Let’s think about this as seriously and rationally as we can, and by looking at other articles within the ICESCR that may be the reason why we haven’t ratified it.

I reckon that Article 1.1 may have something to do with it. The article reads: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. How about Article 8 that ensures that every person shall have the right to form trade unions? And then there’s Article 13.1 that requires governments to ensure that everyone has a right to education that strengthens respect for human rights and promotes understanding, tolerance and friendship.

Any of the above mentioned provisions, along with any number of political reasons may account to the reason why Malaysia hasn’t signed and/or ratified the ICESCR. Until Malaysia does, arguably, can it be said that Malaysians – civilian, official, housewife, drug user, policeman, prisoner, popstar, master, protégé, etcetera - have the right to the highest attainable standard of physical and mental health? Can we look at drug policy from a human rights perspective without the ICESCR? My argument is that we can, but the task is made a hundredfold more difficult.