BY DR SHAHRUL MIZAN ISMAIL
SEPTEMBER 18 — The recent proposal by the Urban Wellbeing, Housing and Local Government Minister to allow housing developers to give loans to potential house buyers has caused quite a stir among the netizens in social media. Not only has it invited comments and criticisms, but also quite a number of new ideas and alternative proposals to resolve the issue. Not many would know however, that the right to adequate housing is actually a recognised universal human rights, classified as the second generation of human rights, which was first embodied in the Universal Declaration of Human Rights (UDHR), and adopted by the UN General Assembly in 1948.
Article 25 (1) states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services…” The Declaration is not a binding treaty but was signed by all member states of the United Nations.
The International Covenant on Economic, Social and Cultural Rights (ICESCR) which was adopted in 1966 further elaborates on the aforesaid by stating in its Article 11 (1): “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right…” The specific elements of the right to housing have been further developed in two main General Comments adopted by the UN Committee on Economic, Social and Cultural Rights in 1991 and 1997, the gist of which states that government’s obligations fall into three categories, namely the obligations to respect, protect and fulfil.
The obligation to respect under international human rights law requires government to not directly or indirectly interfere with the enjoyment of the right to adequate housing. For example, government should not be carrying out forced evictions, unreasonably demolishing homes, doing anything that infringes on the right to privacy and protection of the homes, denying housing and land or doing anything else of a similar nature.
In addition to the aforesaid obligation to respect, the obligation to protectrequires the government to prevent third parties from violating this right. Businesses and the private sector are important players in the housing industry. The private sector includes property developers, construction firms and infrastructure providers who are directly involved in the construction of a significant portion of the housing stock. The obligation to protect imposes on the governments the duty to create legislation or other measures that will ensure private actors such as property developers, landowners and corporations comply with human rights standards relating to the right to adequate housing. For example, government may adopt legislation that regulate the housing and rental markets in a way that promotes and protects the right to adequate housing, guarantee that banks and financial institutions extend housing finance without discrimination or manipulation, prevent discriminatory practices affecting access to and control over housing, land and property and many more.
Extending from the aforesaid, the obligation to fulfil requires government to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to fully realize the right to adequate housing. Government must, for instance, adopt a national housing policy or plan that focuses on the disadvantaged and marginalized groups, identifies the required resources available to meet these goals, specifies the most cost-effective way of using them, outlines the responsibilities and time frame for the implementation of the necessary measures, monitors results and ensures adequate remedies for their violations. Under this obligation to fulfil, government must progressively, and to the extent allowed by their available resources, prevent and address homelessness. It must also provide the physical infrastructure required for housing to be considered adequate, or ensure adequate housing to individuals or groups unable, for reasons beyond their control, to enjoy the right to adequate housing, notably through housing subsidies and other measures.
It is only through observing these three tier obligations will a government be deemed to have complied with the international human rights law standard. Although Malaysia is not yet a member to the ICESCR, it is still one of the signatories of the UDHR, and the former, including its general comments remain to be the most useful guide for governments from all over world in relation to issues relating to the human right to housing. Thus, in formulating its own national policy with regards to housing, reference must also be made to these international human rights guideline. What is planned and schemed should logically take into consideration the aforesaid obligations.
* Dr Shahrul Mizan Ismail is an Associate Professor at the Law Faculty of University Kebangsaan Malaysia.