The ISA in Malaysia - Pt. II

3. Legislation to combat an emergency may suspend all fundamental rights except freedom of religion

Article 150 of the Federal Constitution gives extraordinary powers to the Executive to act when a State of Emergency is declared. Any Act enacted under Article 150 need not comply with all fundamental liberties except related to religion (Article 150(6)(a)) and continues in force indefinitely until parliament otherwise determines, whether or not the circumstances giving rise to the emergency have terminated.

In the 1957 Merdeka Constitution, a proclamation of emergency and laws passed during such an Emergency shall cease to be in force at the expiration of two months from the date of proclamation. They would only continue to have force if they have been approved by a resolution of each House of Parliament before the expiry of the specified period. Such sunset provision was meant to prevent abuses by the Executive.

However, the Constitution Amendment Act 1960 removed this highly desirable protective mechanism by providing that neither the Proclamation of Emergency nor the laws passed automatically lapse after two months. Instead, they remain in force indefinitely, until both Houses of Parliament pass annulling resolutions [9]

As the consequences of this 1960 amendment, there are 4 proclamations of Emergency that are still valid and in force today as none of them had been revoked or annulled [10].

The 4 proclamation of Emergency are

1. Indonesian Confrontation (1964)
2. Political crisis in Sarawak only (1966)
3. Racial riot (1969)
   
4. Political crisis in Kelantan only (1977)

In the Constitution (Amendment) Act 1981, a new Clause (8) was inserted to Article 150, which provides that the Courts have no jurisdiction to entertain any application to challenge any State of Emergency proclaimed by His majesty and any laws made there under – thus all questions concerning emergency powers would be left to the absolute discretion of the Executive.

This 1981 amendment effectively places the action to invoke the emergency powers beyond judicial review.

The combine effects of 1960 and 1981 amendments substantially and extensively infringed upon fundamental concepts underlying the 1957 Merdeka Constitution. These amendments all worked to the detriment of the individual and to the benefit of the Executive.

Unrestrained invocation of emergency powers poses a threat to the rule of law and democracy in Malaysia. Lim Kit Siang, the then Parliament Opposition Leader, proposed a review of the exercise of the emergency powers under Article 150 and the formulation against abuses of emergency powers. [11] His proposals are as following:

• The effects of states of emergency on the rights of citizens and the powers of the various branches of government should be clearly spelt out.

• The constitution should enumerate and define the situations, which justify departure from the normal order. There should be separate provisions to distinguish between war with foreign enemies and internal disturbances.

• The duration of states of emergency should be specified. Review of the need for emergency occurs at regular intervals.

• The procedure for declaring a state of emergency must be constitutionally defined, giving primary responsibility to legislature.

It is submitted the Federal Constitution, providing that emergency legislation can be inconsistent with any provision of the constitution except those concerning religion, citizenship and language is wholly incompatible with the contemporary international standard. A detail review should be carried out to protect the fundamental liberties of the citizens during emergency period.

4. Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law

The constitutional guarantees of fundamental liberties are also not entrenched in that they are protected from the amending powers of Parliament. It is technically possible under Article 159 of Federal Constitution for fundamental liberty provisions to be altered, restricted or even done away with by two-third-majority vote in a constitutional amendment.

However, the Indian Supreme Court thought otherwise. In the Indian case of Kesavanand Bharai v The State of Kerala A.I.R. 1973 SC 1461: Supreme Court of India had to consider the scope and extent of the power to amend the Indian Constitution whether certain provisions can be corroded by the Parliament thru the process of constitutional amendment. The court ruled that the doctrine of basic structure is effective in the Indian Constitution. The basic structure of Indian Constitution said to consist of the following features.

· Supremacy of the constitution
· Republican and democratic forms of Government
· Secular nature of the constitution
· Separation of power between legislative, executive, judiciary · Federal character of the constitution

.Every provision of the Indian constitution can be amended provided the basic foundation and structure of the constitution remains the same

In favour of this doctrine, it can be said that it provides an insurance against legislative over exuberance. It safeguards the basic structure and value of the constitution against the power of transient political majorities.

In Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187, Federal Court declined to follow the Kesavanand doctrine and held that fundamental rights enshrined in Part II of the Federal Constitution were not inviolate and could be amended by Parliament.

The courts’ reluctance to follow Indian case on civil liberties and constitutional law, which have resulted in lesser rights being enjoyed by a Malaysian citizens than Indian citizens.

Tommy Thomas [12] advocated for the concept of “Basic Structure” to be applied in Malaysia. He argued that the acceptance is the only way for the courts to live up to its constitutional duties in preserving and protecting the Constitution in the face of the numerous constitutional amendments by parliament and the frequent use of Emergency Powers by the Executive.

It may be useful to recall what Justice Jackson said in the case of West Virginia State Board of Education v Barnette 319 US 624: “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the Courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Judicial interpretation on the Fundamental Liberties

As the Federal Constitution with a chapter on fundamental liberties, the judiciary has been given the vital role of reconciling the conflicting demands between the fundamental liberties of the citizens and responsibilities of the State. Violation of the fundamental liberties enshrined in the Federal Constitution can be remedied in the Courts through writ of habeas corpus, mandamus, certiorari and others.

Tun Suffian in Re Datuk James Wong Kim Min [1976] 1 LNS 124 observed that “The laws affect the liberty of the subject and in the case of doubt or ambiguity, they should be interpreted against the authority and in favour of the citizen”.

Raja Azlan Shah declared in Pengarah Tanah & Galian, WP v Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS 143: “Unfettered discretion is a contradiction in terms… Every legal power must have legal limits, otherwise there is dictatorship. The Courts are the only defence of the liberty of the subject against departmental aggression. In these days when government departments and public authorities have such great powers and influence, this is a most important safeguard for the citizen; so that the courts can see that these great poers and influence are exercised in accordance with law.”

The above statements reflect the bright side of liberal constitutional interpretation in favour of the peoples. However, the Courts tend to have different approach on interpreting the constitutional provisions. This can be seen from the survey of cases involving interpretation on the meaning of “life” and habeas corpus proceedings.

The Meaning of “Life”

The Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771, Gopal Sri Ram JCA said: “The expression “life” appearing in Article 5(1) does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters that go to form the quality of life. Of these are the rights to seek and be engaged in lawful and gainful employment and to receive those benefits that our society has to offer to its members. It includes the right to live in a reasonably healthy and pollution free environment. The judgement of the right to life incorporates right to livelihood. “

However, in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 4 CLJ 105, the Federal Court disagreed with the interpretation of Tan Tek Seng and viewed that the matters which form the quality of life has been enshrined in the Part II of Federal Constitution under the heading of Fundamental Liberties.

In short, Court of Appeal in Tan Tek Seng has expanded the meaning of “life” in Article 5(1). However, Federal Court in Sugumar reversed the liberal trend set by Tan Tek Seng and have used a restrictive approach in interpreting the provision. In Sugumar case, the judgement is in favour to the State but it is the opposite for Tan Tek Seng.

Habeas Corpus Proceedings

In the case of Abdul Ghani Haroon v Ketua Polis Negara & Another [2001] 3 CLJ 606, Justice Dato Hishamuddin Yunus granted the habeas corpus application. The court used the inherent powers – s25(2) of the Courts of the Judicature Act 1964 read with Para 1 of the Schedule of the same act – to make a further order that the police be restrained from rearresting the applicants at least for a period of 24 hours. Dato Hishamuddin said: “Due to heavy presence of police personnel, should rearrest immediately occur, that would have been a grave injustice. Such an action on the part of the police would make a mockery not only of my judgement, which I had delivered, but also of the whole habeas corpus proceeding and of the constitutional guarantees under art 5 of the Constitution.“

This judgement reflects the judicial creativity in interpreting the provisions of the legislation. This is the landmark judgement in which first time a further order of 24 hours no-rearrest assurance was made. Prior to this judgement, even one succeeded in the habeas corpus application may not taste the fruit of the judgement long enough. For instance, a politician cum lawyer Karpal Singh was rearrested at a roadblock while he was on his way home to Penang with his family nine hours after obtaining the writ of habeas corpus from the High Court of Ipoh in 1988.[13]

Expansion of the Constitution’s scope

The Malaysian court is more notable for its conservatism than activism. Malaysian judges should in future play a more activist role in carrying out their constitutional functions. They should adopt a purposive, liberal and broad view of constitutional rights and concepts.

It is submitted that the Court should expand, not limit the Constitution’s scope. The provisions on fundamental liberties must be interpreted in such a way that is promotes democracy and fairness.

International law on Human Rights

In 1948, the Universal Declaration of Human Rights (UDHR) was adopted as a “common standard of achievement for all peoples and all nations”. Today, the UDHR has been supplemented by a vast array of international standards. Of the 25 major international human rights instruments, Malaysia has ratified only five namely [14] :

• Convention on the Elimination of All Forms of Discrimination Against Women
• Convention on the Rights of the Child
• Convention on the Nationality o married Women
• Convention on the Prevention and Punishment of the Crime of GenocideSupplementary
  
• Convention on the Abolishment of Slavery, the Slave Trade and Institutions and Practices similar to Slavery

Malaysia has yet to ratified two important instruments namely

• International Covenant on Economic, Social and cultural rights (ICESCR)
• International Covenant on Civil and Political Rights (ICCPR)

Both ICESCR and ICCPR have come into effect in the year of 1976. Calls for ratification has been made by numerous quarters including the Parliament opposition leader who moved a Parliament motion in 1976[15] and by Malaysia Human Rights Commission in its year 2000 Annual Report. [16]

As of 1 April 1999, there are 141 countries out of 195 countries in the United Nations ratified ICESCR, 144 for ICCPR [17].

It is submitted the Government of Malaysia should take initiative to ratify the ICESCR and ICCPR and ensure the domestic law compliance with the conventions. In the age of globalisation, the international law on human rights is becoming increasingly relevant. Ratifying these two covenants will promote human rights and avoid the recurring violation of fundamental liberties in Malayisa. This will enhance Malaysia international reputation and in line with the national aspiration Vision 2020 to achieve a mature democratic society.