Honour Among Thieves - The BN's "social contract"

Art Harun has come up with this well written piece debunking the "social contract" as Umno defines it, and the apparent compromise of the "Malays" with the "nons" (which is actually far from the truth).

Good one, Art - more has to be done to discredit the so called "social contract" as per BN's definition.

I used to write a lot on the "social contract" a couple of years ago and was ridiculed for the things I said.

As far as I'm concerned, it was more of a agreement among thieves- Brits included. At least the Brits helped develop a good system which ran on autopilot after "independence" and died for it on the beaches of Normandy on D-Day...

The the BN pirates only sat pretty, hijacked the system and took the credit of "independence" for themselves - while the real fighters were erased from the history books.

I really hope more people will take on the Umno goons and Mahathir cronies on this matter - and Pakatan Rakyat is doing nothing about it!

Bravo!! Keep at it, Art!!

Tuesday, April 20, 2010

The Bastardisation of the "Social Contract" - part 1

In "The Social Contract - correcting the misconceptions", I have sought to explain what the social contract is all about.

I do not want to repeat what I had written before. However, I wish to revisit several salient points about the social contract.

Social contract is a legal theory or concept. It does not exist in reality. It is a branch of legal, social or even political philosophy. This theory seeks to explain or rationalise why we, human beings, would band together and form a State.

It also seeks to rationalise why we would then agree to surrender our liberty, freedom and the ability to do whatever we like to the State when we, the human beings, were all born free and by our nature do not like to be restricted and constrained.

The philosophers surmised that we do so because we by nature are social creatures. We do so because we want to live together as a society. Furthermore, we do so because the State promises us some benefits. In fact we expect the State to give us the benefits that we want. That is why we surrender or agree to surrender some of our freedom, liberty and free will to the State.

That is why, in theory, we do what we do.

However, it is not a one way or unilateral agreement. There is supposed to be an exchange of promises between us, the people, and the State. For example, we promise not to steal and if we steal we promise to abide by the law which would send us to prison. In return, the State promises to protect our property from being stolen by other people.

That is the social contract as a legal theory.

In reality, that social contract does not exist, in writing or otherwise.

Now, the social contract which is so much talked about in Malaysia is a bastardisation of the theory of the social contract. Why do I say so?

It is simple. The theory of social contract postulates an agreement between the people of a State and the State. However the social contract which is so well loved by some people in Malaysia is a supposed agreement between the respective leaders of the three major communities among themselves which happened prior to our independence.

That in itself is the hijacking of the theory of social contract.

Apparently, the three community leaders met to decide the whole future of Malaysia before and after independence. And what they had agreed would bind all of us till kingdom come.

Apparently too, the Malay leader was generous enough to confer citizenship to the non-Malays who were not qualified for citizenship.

The two non-Malay leaders, out of sheer gratitude to the Malays (who were represented by the said Malay leader) for doing so, agreed that the Malays should have "special rights." These special rights were then spelt out in the Federal Constitution.

This brings the oft-repeated argument that the Malays have sacrificed a lot in agreeing to "grant" citizenships to the non-Malays who were otherwise "not qualified" to gain one. Therefore the non-Malays should respect the Malay's special "rights".

Over the years, these special rights were apparently challenged by the non-Malays, and even by some Malays themselves. So, according to some people, this is unacceptable. This is unconstitutional. This constitutes a breach of the so called social contract.

What does history show us about this bastardised version of the social contract?

The Secretary of State for the Colonies (Mr. Alan Lennox-Boyd), while debating our Independence Bill reported to the British Parliament:

"There were extreme views on the part of some sections of Malayan* (*I think when he said "Malayan", he was in fact referring to the Malays) opinion which are opposed to any political advance on the part of the Chinese people in Malaya. There were equally strong views held by some of the Chinese population demanding absolute jus soli citizenship for anybody born in the Federation and the complete abolition of any distinction between the races.

The constitutional Commission had to find a solution which would work and which would find general acceptance, and in our view it has fully succeeded in its task. The present Federation Constitution represents a genuine compromise worked out between differing sectors. The citizenship proposals, I believe, are a triumph of good sense and tolerance, amidst widely conflicting views, and I believe that the balance struck between Malay and Chinese has been found to he a wise balance.

There are solid guarantees of fundamental liberties to meet Chinese fears of discrimination, with reasonable arrangements to safeguard the special position of the Malayans without injustice to other races. I am conscious that these two aspects of the settlement arouse particular interest in the House, and I hope that I may be forgiven if I devote a moment or two to those two most important matters.

Now, a word about the balance achieved between the rights of Malays and Chinese. The special position of the Malays was recognised in the original treaties made by His Majesty in previous years, and Her Majesty Queen Victoria and others with the Malay States. It was reaffirmed when these treaties were revised. It was confirmed in the 1948 Agreement, and reference was expressly made to it in the terms of reference of the Reid Commission. So the Malay privilege clauses in the articles of the Constitution do not, in the main, introduce any precedent, but give recognition in the Constitution to the existing situation. Most hon. Members will, I think, know something of what these privileges are

As I said, I believe that a fair balance has been struck between the interests of Malays and Chinese, and I indicated how the special position of Malays enshrined in the new Constitution did not create a precedent because it had been provided for in very many other treaties and arrangements. I was about to say what form these special privileges had taken. In most States in Malaya, there are extensive Malay reservations of land. Elsewhere in States, there are systems of quota for admissions to the public service, a certain proportion having to be Malays. There are quotas for permits or licences to carry on certain businesses. There is preferential treatment for Malays in the granting of scholarships and bursaries and, generally, in education.

The Reid Commission found very little opposition in any quarter in Malaya to the continuance of the present system for a time, and it made certain recommendations which hon. Members will have read. The Alliance Government—this was accepted by the three parties composing the Alliance—wanted a number of changes, which have been made. They relate mostly to quotas in the public service, to permits, scholarships, and land reservations. Very generally, the proposal to review the quotas after fifteen years has been dropped. The responsibility of the High Commissioner is transferred to the Head of State, but—and it is a genuine safeguard for other races—the Head of State will act on the advice of the Cabinet, and the Cabinet is bound to be sensitive to the feeling of public opinion at any time."

Yes, there was indeed a compromise by the various communities. And there was, at the end of the day, "a triumph of good sense and tolerance, amidst widely conflicting views." Meanwhile, "the balance struck between Malay and Chinese has been found to be a wise balance."

It should be noted that the special positions of the Malays had always been recognised by the British from day one. These have been specified in various treatises. And there were recognised in the Federation of Malaya Agreement 1948, an agreement which preceded our independence.

All that the Reid Commission did was to continue to give cognisant to those special positions. There were no new position or right added as part of a compromise. To say therefore that citizenships were offered to the non-Malays in exchange of those special positions were not accurate. That is because those positions were already there and recognised from day one.

It is also wrong for anybody to say that the granting of citizenship to the non-Malays was a sacrifice by the Malays of their "natural claim to the land of Malays ("Tanah Melayu"). That could not be farther from the truth.

That arrangement, from historical evidence, was a "compromise" which was achieved after intense negotiations between the major communities and the Reid Commission. Being a compromise, all parties - not the Malays alone - achieved certain demands while letting go some of their demands.

For example, not all non-Malays managed to obtain citizenship. On this, the said Alan Lennox-Boyd explained:

"Under this compromise, anyone who is now a citizen of the Federation or who was born in the Federation and is over 18, or is born there after 31st August next, will have citizenship of the Federation as a right."

There was a balance achieved between the demands of the non-Malays and the absolute birth rights of the Malays. That is why it was called a compromise.

The citizenship was not a gift by the Malays. Nor was it a total surrender by the non-Malays of their minority rights in exchange for citizenship as screamed about by Perkasa, Dr Ridhuan Tee Abdullah and even Tun Dr Mahathir. The special "rights" of the Malays was not a concession by the non-Malays. They had always been there in the first place.

The Constitution was drafted to reflect this harmonious co-existence of all the major races in the then Malaya. It spells out all the rights and positions of the various communities who were expected to lead a peaceful and prosperous co-existence. The Constitution was designed to make the yet unborn Malaysia a fair and progressive country.

As stated by Mr. Geoffrey de Freitas (the MP from Lincoln):

"The test for the Federation will be whether it can become a real nation in other words, whether the Chinese people in Malaya can become full citizens and work with the Malays, the Indians and the Eurasians to make a new nation. I hope that they can."

Have we, as a nation, passed the test?

It is also not out of place to mention here that in drafting the Constitution, the fathers of our independence were astute enough to consider each community's services and contributions to this land. This goes towards achieving the balance which I was referring to earlier. In other words, no one community could claim exclusivity towards the country as it was.

Miss Joan Vickers, the MP for Devonport noted:

"We should remember, in considering these different races, the part that they play. The Malayans are the indigenous people of the country, but we have to remember that had it not been for the Chinese the country would certainly not have been as prosperous as it is today. They opened up jungle roads and worked in the tin mines, and the prosperity of Malaya owes a great deal to the Chinese.

Furthermore, we had the Indians who, in a rather different way, as a result, in the beginning, of a contract system between the Indian Government and the Government of Malaya, have played their part in the prosperity of the country. In a great many cases they did not make Malaya their home and returned to India at the end of their contract.

We also owe a great deal to the Portuguese Eurasians in Malaya. Theirs is a very old community. They still keep something of their mother tongue, and very strongly to their own Roman Catholic religion. They have proved loyal and faithful civil servants in a great many of the States. Generally speaking, whichever State they have resided in, they have taken a leading part and have always been loyal to either the British resident or adviser, or whoever they have been serving.

Finally, I hope that in due course, the Orang Bukit will be able to be brought into the community, because I believe that through living in the deep jungles they have very remote ties with their own country, and they could be a source of trouble. I should like to pay tribute to them for what they did during the very difficult period when the Chinese guerillas were in the jungle, when they gave considerable help in tracking the enemy."

As evident, everyone's contribution was considered. And it was all done in the name of accommodating, to the fullest of possibility, every community's demands, rights and positions. Wherever there was a seeming imbalance, a check and balance mechanism was inbuilt within the Constitution in itself.

To state all the mechanism of check and balance in the Constitution would make this article too long. Suffice if I point out that among others, an independent judiciary (which then includes the right to appeal to the Privy Council), was a part of that mechanism. As stated by the MP for Crosby, Mr Graham Page:

"Finally, I would draw attention to an important safeguard to the minorities. That is in the retention of the jurisdiction of the Judicial Committee of the Privy Council."

(Of course, some time ago, someone had to dismantle the Privy Council appeal process and the whole judiciary too leaving the government to lord all over the Judges!)

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Social Contracts, Social Betrayals and NEP ....

Where is the Spirit of Merdeka?

The Pirate and "Social Contractor".

The "Social Contract" - A Malaysian "Cold War"?

The "social contract" - A Dead-end Roadmap to Piracy

Di mana bumi ku pijak

MalaysiaKini

(My apologies to Malaysiakini for "stealing" the post -

I just thought that that it was a fantastic article. It will be removed if required.

Thanks.)

Helen Ang | Dec 4, 08 10:57am

1. Mukhriz Mahathir is not retracting his statement on vernacular schools

He should visit the national schools during recess and see how pupils sit in their own racial groups while eating in the canteen. He should drop by after school hours and see the kids play within their own racial groups when waiting for the bus or to be fetched home. He should meet with the PTAs or read in the news, or in blogs how teachers in national schools bully and victimise Indian children.

Racism and religious supremacy is becoming endemic in national schools. Therefore putting all the kids under one roof will not solve what’s in essence a problem of communal politics.

(I hope that the Malaysiakini editors will excuse me for writing in point form as I’m time-constrained by other deadlines this week.)

2. Mukhriz may be guilty of posturing but he is nonetheless echoing a genuine sentiment and outlook of the Malay grassroots.

3. Chinese on the other hand will ‘riot’ if ever mother tongue instruction was to be withdrawn. An integrated system of education could have been implemented at an earlier point in time but this is water under the bridge; the boat has left the harbour and sailed too far to turn back now.

4. Behind the talk about our segregated education streams is the issue of primacy of language. To look at it negatively, the Malays are suspicious when the minority polyglots are one-up in language command. They feel threatened when they do not understand the ‘code’, or in other words, Chinese dialects. It gives rise to a fear the Chinese will plot among ourselves, colluding to cheat and take advantage of them.

5. To look at it positively, proponents of ‘Bahasa Jiwa Bangsa’ see the national language as a unifying factor and the axis of nation-building. They want and expect every citizen of this country to be able to speak passable Malay. I think it’s a reasonable demand. English may be the international language, Chinese a useful commercial language, but for Bangsa Malaysia to happen, it has to be Malay first in the public domain, just as Thai and Bahasa Indonesia are to our neighbours.

6. How is it foreign workers, like Bangladeshis, speak Malay better than some Malaysian Chinese? They’ve learned the language from necessity and in the spirit of accommodation.

That the Chinese do not speak Malay as a lingua franca, I can only attribute to lack of acceptance and there being no pressing need; allow me specify the aspect ‘speak’ because any Chinese sitting the PMR or SPM exams submits his answer script in the national language though still unable to converse with ease in Malay.

7. If the minorities find that they can get by in their daily living without much requirement to speak Malay, it goes to show the separate lives led by our different communities.

8. And let’s be honest. If you’re Chinese and your friend’s daughter or son knows Japanese or French, you’d be impressed. If you’re Malay, and you cringe at your fellow citizens’ lack of fluency in the national language, what would you be thinking? That the minorities, though their forebears were granted the right of abode here, look up to foreign languages but look down on your language.

9. Malay is a mature and refined language. There is no reason why it cannot and should not be given its due respect as the medium of communication and learning.

10. What rubbish is the teaching Maths and Science in English? On this, I’m behind the Malay and Chinese educationists who have vehemently objected to the language switch, and I endorse the rationale they’ve put forward.

Sikit-sikit ‘sedition’

11. To me, DAP Socialist Youth (Dapsy) has gone overboard in making a police report on Mukhriz. If we do not want Umno to make police reports at the drop of a hat, why is the federal opposition following the same modus operandi? Malaysiakini said that yesterday the Dapsy delegation was refused entry to the Penang Patani Road police station – which is rather rib-tickling. Given the police attitude, I wouldn’t be surprised if the clerk folded a paper plane out of Dapsy’s complaint.

12. And what’s with the screaming of ‘sedition’? Mukhriz, like Ahmad Ismail, voiced his opinion. Others share their views. So? Deal with it. Don’t throw the book at them.

If this cannot say, that cannot say, and the Chinese political parties fuss about Mukhriz and Ahmad, the Malay political parties fuss over Karpal Singh and Teresa Kok, then the grievances instead of ironed out will be merely swept under the carpet. Our carpet has gathered so much dust that to lift a corner would surely give folks from Gong Badak to Pasir Salak a collective big sneeze. The much hoped for reform deriving from March 8 should also mean liberalising constructive dialogue. Yes?

13. In this Mukhriz episode, I can only roll my eyes at the antics of DAP, MCA and PKR. Why are they so predictable in getting all agitated? Can’t they see where their responses and rhetoric are unacceptable to Malays?

14. Perhaps those who have not ventured beyond Ipoh, Johor Baru or George Town cannot fathom why this land was called Tanah Melayu. But when I sit on a log outside a cattle pen surrounded by coconut trees under a starry sky in Terengganu, I can. The flora and fauna here have had Malay names for centuries; rivers and mountains too. Whenever I drive in the East Coast, I do feel like I’m in Tanah Melayu and it is a heart-wrenchingly beautiful land.

15. Naming is an act of claiming. We have had Malay civilisation – thus rendering the Malays indigenous although there are other influences; the place name Taiping, for instance, has a Chinese root.

16. About Malay Sovereignty: Unless there are some who mistake Malaysia for a republic, accept that we live in a constitutional monarchy. Therefore, we are subjects of the Malay Sultans, and in states without the sultanate, the Yang Di Pertuan Agong is our king (and king to every Malaysian). The (note emphasis) ‘Malay’ monarchs are the sovereigns we have pledged loyalty to by virtue of our citizenship.

17. The national language is Malay. The religion of the federation is Islam – the faith adhered to by the Malay. The national flag bears the crescent which symbolises Islam. The basis of custom in this country is Malay; for the globalised generation, maybe add budaya baru McDonalds. Yet it seems to me some of the non-Malay politicians – who had previously been concubines to Malay Supremacy and presently Umno’s querulous, unwanted mistresses – fail to acknowledge this concept of Malay Sovereignty.

18. It particularly irks me to hear MCA Youth chief Wee Ka Siong respond to Mukhriz, claiming “language alone cannot be deemed as a main factor for national unity”. My dear sir, since minorities are not of the religion of the Federation nor practise much of the majoritarian customs, then language is indeed the central pillar though not ‘alone’ it (as you point out). What other commonality to hold us together, pray tell? Teh tarik?

19. And if some Umno politicians appear willing to reinterpret Malay Supremacy as Malay Sovereignty, then consider that we’ve moved a step forward. Anwar Ibrahim introducing ‘Ketuanan Rakyat’ into the political lexicon is two steps forward. However, Mukhriz’s suggestion, especially coupled with retaining his father’s bad idea of Maths and Science in English, is no pragmatic solution to the polarisation of society.

20. Country first, di sini langit ku junjung.

Total Recall - "Trojans" Revisited ....

"Who are the oppressors but the Nobility and Gentry; and who are oppressed, if not the Yeoman, the Farmer, the Tradesman and the Labourer?
... your slavery is their liberty, your poverty is their prosperity; yea, in brief, your honouring of them, dishonoureth the commonality... Unlord those that are lorded by you."
- Ranter Laurence Clarkson, 1647 (p. 81), The Many-Headed Hydra

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Lately, as I was going thru the web for some reading material, I found this image of the three legged stool at a DIY blog - and guess what I thought of as I read the author's comment (below)?
It was none other than BN and its "NEP/social contract/Ketuanan Melayu" rhetoric!
"I like the design, but crutches are pretty expensive, so unless you have access to broken ones, it’s a bit prohibitive."

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I also stumbled upon reviews of this book which I wish to get soon:

The Many-Headed Hydra is a book which explains how the ruling elites used legitimizing myths based upon metaphors of societal "terror" to manipulate cultural understandings in order to justify repressive violence against culturally defined "punishable categories of people".......

Be that as it may be, what actually plagues the nation now isn't just BN, but also the lack of conscience among politicians - more so, among those who trumpet "religious dogma" and not "values", so as to exploit the masses.

The recent removal of YB Khalid Samad as the PAS Dty. Commisioner from the Selangor line-up spoke volumes about the sincerity of the high profile BN-moles within the PAS hierarchy.
Therefore, calling these currently defensive guys in the leadership, "Trojans", as I did in a post here (it was mainly an interesting discussion on MT - Trojan Horses in the opposition ranks - early this year), wouldn't be too far from the truth.

With the PKR AGM currently afoot, it would be wise for the leadership to bear in mind - that anything which compromises the principles of the desired end result, is morally unsound. The electorate to bear in mind the Achille's Heel of the Pakatan Rakyat coalition, which threatens to derail the process of reform that has begun with 308. Hence, it is imperative that PKR and DAP strengthen their bonds and alliance, and consolidate their position - while not neglecting other partners.
So long as "these elements" do not apologize for the threats that they pose, but remain within the fold, instability and the possibility of derailment cannot be ruled out. These are elements who feel sidelined and apparently do not have not achieved "stature" in national politics befitting their "image", despite their popularity among their faithful. They definitely feel that "smaller" politicians have stolen the limelight which they seek for themselves..... hence the refusal to "play second fiddle" to PKR, but the willingness to be the "expensive crutch" (as in the pic) to Umno's "DIY stool", so as to "hide the shame".

BN/Umno, being masters at what they do, definitely wouldn't mind paying a kings ransom to ascertain their grip on real power, while dishing out peanuts for their "allies". With the might of the instruments of state on its side, let us not be so naive as to believe that Umno doesn't have moles within PAS - they have much more than we may realize, and DSAI knows that quite well.

While I value the electoral partnership that PAS has provided, never for a minute have I been convinced of their sincerity or their intellectual prowess (referring to these "certain individuals").
Although they never expected the electoral "windfall", they did it grudgingly - simply out of their hunger for power - and now their thirst don't seem to be unquenchable! Call me "politically naive" if you like - but I still maintain, that the least trustworthy in a roomfull of politicians, are those who have the need to hide behind the cloak of religion (at least, physically).

Here we have some politicians in "religious" garbs, clamouring for posts and making a pretense of their intellectual credentials, which only impresses the politically illiterate of the nation. They never hesitate to lie to the masses to hide the greed, envy and deceit that they harbour in their hearts.
These are the people who trumpet the virtues of a "theocracy", while they espouse the politics of sectarianism and subjugation.

They are just political wannabes and Umno "drop-outs", who just like their counterparts in Umno/BN, use the platform of democracy, to garner absolute power (but under the cover of religion). They do not care about the economy, democracy, justice or nationhood - they only care for power. These "godmen" would agree to any deal, as long as it can assure them access to power and control. They wouldn't mind being just one of the expensive crutches that would hold up a thoroughly corrupt regime, despite all their religious convictions and psycho-babble.
Their tool is ignorance (of course, once again under cover of religion) among the cloistered and isolated "unreasoning faithful".
Until and unless these guys have had their fill of "power" within the coalition, the danger of BN/Umno rearing it's one of its ugly heads from within would remain.
Just like the mythical Hydra, you can chop it off - but another would grow in its place.

This doesn't mean that PAS as a whole cannot work with their allies, as there is still a significant voice of "reason" within it's fold, which is unfortunately suppressed due to the lack of progressive politics, democracy and open debate (despite all the show we see). They are however, merely "tolerated" rather than accepted in the hierarchy. When push comes to shove, I seriously doubt that people like Khalid Samad and Husam Musa can withstand the onslought of the "godmen", who hold the minds of the unthinking faithful in a vice grip. It would be best for them to align themselves with PKR, and fight for their values from there.

Considering the frail & aging Nik Aziz, and the culture of "idol-worship" that's prevalent, the salvation of PAS's politics hinges on their "Erdogan-ization" - intellectuals and pragmatic in their fold. The so called "Erdogan Faction" within PAS should be embraced for their pragmatism and intellectual clout, while the heroes of "Amanat Hadi" should be zippered. In the event that the current PAS leadership resorts to Mahathirism (or Khomeini-ism) to suppress them, they would only fade once again into the political oblivion of radicalism, even if they were to ally themselves with Umno.
Considering the circumstances, the scepticism which DAP might harbour with regard to the sincerity of these "trojans" is, I'm certain, shared by PKR and Anwar.

But let's not write them off as yet - there's still hope that PAS will embrace positive values advocated by the intellectuals. There is hope yet, that they would be willing to open the minds of their followers to change, instead of recoiling into "Amanat Hadi"s of the future.
Let's see how they evolve, and what the future holds for them in Pakatan Rakyat ..... or maybe even in Umno!

$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
Related:
Fearing the 'Trojans' of 916?
The PAS factor - A Viable Alternative?
The PAS "Cooperation" and Vote.
Class Politics - the Other Option?

Constitutional (Amendment) Bill 1983, revisited

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“Immunity is quite essential. Take the situation where we have a hung Parliament, the Ruler comes in to decide on a Prime Minister from one side of a political party and imagine if the other side of the political party opposes it and takes the Ruler to court”
- Tunku Naquiyuddin

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Well, well, well - first it was TM Pahang who said this.
Now we have Tg. Naquiyuddin asking for "immunity". Is it simply because of this immunity that the Rulers aren't able to "perform their duties" in defending the Federal Constitution?
It escapes me, if the Rulers can be charged in court for carrying out their duties as per the Constitution. Here I was thinking that they are not immune from the law, only in their conduct in their personal capacity. Shouldn't it be a source of pride that the Royalties in their personal capacity, are bound by the laws of Humanity? I cannot say if just possibly, maybe - Tg Naquiyuddin feels otherwise.

It is sad that some people are quick to request that they are given "powers to defend the constitution", when they have hardly raised a whimper when the people's rights have been subverted repeatedly all these years (even in the immunity years).

While I may not exactly be a fan of Mahathir, this was probably one of the best things he's done - impressing upon all that none is above the law. However, that he erred in that he took that privilege for the executive is regrettable. It shouldn't have been to the extent that after 30 days, the King's assent was insignificant to the passing of Laws. There should have been some middle way, where neither the King nor the Executive held absolute power.

It's strange that the most outspoken, publicly respected and erudite of the Royals - HRH Raja Nazrin - who has been at the forefront of this struggle for socio-political reform, isn't too concerned about "power" or "immunity from the law".
I wonder why anyone would want absolute "immunity" from the Law - what have they got to fear? Maybe we should ask Bruce Willis, StanChart or maybe we should ask all those who have been in the limelight for "various reasons" .... that should answer many questions, I suppose.

Anyways, I did some checking up on the matter of the Ammendments ....

"The immunity of the Malay Rulers and the royalty in the performance of their official/state duties has never been taken away. They continue to enjoy that immunity.
.......Although their private immunity was taken away, they continue to enjoy the privileges of being tried by special courts.
So, in my humble view, the question of restoring royal immunity does not arise because they have never lost that protection."
- Kadir Jasin, Royal Immunity is Never Withdrawn

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"But R.S. Milne and Diane K. Mauzy, in Malaysian Politics Under Mahathir, citing interviews with Umno ministers, suggest that what became known as the 1983 constitutional crisis “was precipitated by reports, received by Mahathir, that the Sultan of Johor stated at a gathering that when he was elected Agong he would unilaterally declare a state of emergency, and with the aid of the army, throw out all the politicians.

“Compounding this were stories that the Sultan was close to certain key military men, and that the army chief, General Tan Sri Mohd Zain Hashim, had criticised Mahathir’s approach and had questioned where the army’s loyalty rested.”

Whatever the case may be, on Aug 1, the Government brought the Constitution (Amendment) Bill 1983 before both houses of Parliament, and it was quickly passed.

The bill put forward 22 amendments to the Federal Constitution, including three very significant changes to the position of the Malay Rulers.

First, it removed the need for the Agong to give his Royal Assent to a piece of legislation before it could be gazetted as law. Instead, it stipulated that if the Agong did not give his Assent within 15 days, he was deemed to have done so, and the law could come into effect.

Second, it introduced parallel provisions removing the need for a Sultan to give his Assent to State laws.

Third, it transferred the power to declare an Emergency from the Agong (who was, in any case, supposed to act on the advice of Cabinet in this regard) directly to the Prime Minister, who was not obliged to act on anyone’s advice.

The Prime Minister’s Department had ordered a press blackout on the Constitution (Amendment) Bill 1983 and, so, while the fact of the bill’s passing was mentioned, its significance was downplayed, and the debate – including an impassioned speech in opposition to it by DAP’s Lim Kit Siang – did not appear in local media.

For the following two months, nothing appeared. But a right royal storm was brewing.

Immediately, the liberal intelligentsia opposed the provision that allowed the Prime Minister to unilaterally declare an Emergency.

On Aug 2, 1983, Aliran issued a statement condemning the Bill, claiming the proposed amendment “opens the way to political abuse. For the Prime Minister is, in the ultimate analysis, a political personality very much involved in the conflicts and compromises of party politics. There is no constitutional mechanism for ensuring that he will not use his emergency powers against his political foes from any quarter.

“It is simply not possible to prevent an ambitious Prime Minister in the future from emerging as a ‘supremo’ after the proclamation of an emergency.”

But, under the strict press blackout, it was not reported.

Meanwhile, unbeknownst to the public, the Agong, under pressure from his fellow Rulers, refused to give his Assent to the Bill.

The Rulers maintained that the Bill contravened Article 38(4) of the Constitution, which stated that “No law directly affecting the privileges, position, honours or dignities of the Rulers shall be passed without the consent of the Conference of Rulers.”

The Rulers had also come to understand the full legal implications of removing the need for Royal Assent to legislation. It meant that if Parliament voted to abolish the monarchy, the Rulers would be powerless to stop them.

Tensions continued to build behind the scenes. It was only in October, when Senu Abdul Rahman circulated a letter condemning the amendments, followed by Tunku Abdul Rahman defying the gag order by writing about them in the pages of this newspaper, that Malaysians woke up to the crisis.

There were also disagreements within Umno; as Gordon P. Means notes in Malaysian Politics: the Second Generation, “? many in the ruling coalition were distressed by the contents of the amendments and the confrontational style of Dr Mahathir towards the Malay Rulers.”

Some establishment figures believed the Prime Minister had far-reaching aims. In a 1988 interview transcribed in K. Das & The Tunku Tapes, Tunku Abdul Rahman and the veteran journalist discuss the constitutional crisis.

If one can look past the bitchy, surat layang (poison pen letter) tone of their stories about Dr Mahathir’s children, one can get a snapshot of the groundswell of suspicion.

Tunku: “You see, the Malays have a cause for adat, resam and so on ? tradition. I have a respect for it but he has none. He dislikes it. You see, his whole aim is to upset the constitution and turn this country into a republic. His son was in London talking quite openly amongst the students that his father is going to be the first President of Malaya.”

Das: “I heard his daughter was also talking about it here. Apparently she was caught talking about it at a party not knowing that behind her was one of the Tengkus from Negri Sembilan who overheard it. She said that as soon as the constitution amendment is signed, it is finished, we can become a republic.”

Against this background of suspicion, the 1983 constitutional crisis "
-Huzir Sulaiman, The Mahathir years, StarOnline

888888888888888888888888888888888888888888888888888

A major constitutional crisis broke out in 1983 when the Mahathir government sought to amend the constitution to clip the assumed power of the King (Yang di-Pertuan Agung) to confer royal assent to parliamentary bills before they became laws. When the Conference of Rulers objected to the government's bill of 1983 which required compulsory granting of royal assent by a period of 15 days, the Prime Minister went on a country-wide campaign to drum up support for the government's position.

Thus, four years later when the Judiciary came under siege, the Prime Minister had a very compliant set of rulers on his side. This set of events led to the removal of the Lord President, the highest ranking official of the judicial branch, the suspension of five Supreme Court judges and the eventual sacking of two of them. The events that brought this about were a complex intertwining of politics and litigation, which led to the accusation that the judges, including the Lord President had become embroiled in politics (See box).

In truth it was the chagrin and hubris of a Prime Minister who was unable to accept legal decisions working against his party's political and economic interests that led to the bizarre developments. Various interpretations of these events have been written but the main outcome, all will agree, has been the further strengthening of the hand of the executive vis-à-vis the Judiciary to the extent that judicial independence has become a chimera in the Mahathir period (Lee, 1995, Lawyers Committee for Human Rights, 1990). This together with the emasculation of the role of the traditional Rulers has made executive dominance in government a stable and underlying feature of the state.

-Executive Dominance, http://www.aliran.com/oldsite/hr/js2.html

Seeking the "Point Of Reference".

*************************************************

"More importantly, the individual-collective version implies periodical renewal, in that it permits revisions, while the ruler-subject version is cast in stone. In this sense, that the Conference of Rulers interpreted the social contract as "all provisions in the Federal Constitution" is most assuring. "
-Wong Chin Huat, A tale of two contracts , The Nut Graph

"There is a lively and inconclusive debate about what the document of destiny actually ordained and how far the imperatives of the Constitution should be modified to meet the new aspirations of the electorate.
The Malay Rulers caution against such thinking and I am inclined to agree.
Physics teaches us that any movement causes friction and friction produces heat."
- Shad Faruqi, Understanding the Social Contract

=============================================

No modern nation state can exist in an orderly manner without a "written" Constitution which has to be the Point of Reference for future generations that aspire toward nationhood.
Without this point of reference, the nation as a whole is doomed. The people will seek out their own points of reference at their own whims and fancy, without regard for the Federal Constitution, as is happening now. Whatever disputes that may arise will need to refer to the Federal Constitution as a "Point of Reference".

For Shad Faruqi to imply that the only "Social Contract" there is, is the Federal Constitution, and nothing else, (despite not being a born Malaysian) as opposed to some earlier spin about "the social contract is in the constitution", should be appreciated. He makes no attempt to speak of "an unwritten code" which politicians often refer to. Much of what he says with reference to the Federal Constitution makes plenty of sense.
That he says the following of the "Social Contract", is reassuring -
"It refers to the painstaking compromises ......... for the creation of a democratic, monarchial, federal and non-theocratic system of government".

However, I do not quite understand how he could say that he's “inclined to agree” with attempts to block intellectual discourse on this matter, under the guise of “preventing the questioning the social contract”.
Of course, The Rulers Conference did say that you shouldn't question the validity of it, which is acceptable. I fail to see how, seeking it out once again, to understand it, is to question it!
They didn't say that you shouldn't discuss it to understand the spirit that it embodies, did they? Moreover, to rescue it from the perversions of the political pirates is imperative should we desire to uphold it!.
On the contrary – it is to uphold this “Social Contract” - what Shad Faruqi calls, the “Document of Destiny”! - do not spin it to be otherwise. You should be more careful in what you imply, Shad. The way I see it, it is only a “certain group of politicians” who dislike the awareness of constitutional rights which intellectual discourse give rise to – hence the “don't question” mentality.
Therefore I'm inclined to agree with the Rulers Conference that the "Social Contract" in the form of The Federal Constitution should be taught in schools (and some of our lawmakers too!).

The Federal Constitution has been redefined and subverted countless number of times, ever since the 'unconstitutional' suspension of parliament & Umno coup of '69, so as to progressively consolidate power at the centre - among a ruling elite.
It has been rendered into "toilet paper", so to speak, and only used when convenient. None of the principles that it stresses on is held sacred.
The result was the "social contract" as was harped on since the 80s.
And guess who the culprits are?

Now, most people who shout out hoarse about the BN social contract don't refer to the Federal Constitution any more - their point of reference is the NEP which has been twisted beyond recognition.
When it comes to national policies, the courts are turned into a playground for these NEP-ists and political pirates- the Constitution becomes secondary to the idea of self-preservation of these pirates of the constitution.
The twisted NEP, political motivations and the self-preservation of pirates takes precedence over the Federal Constitution when it comes to pronouncing judgements. The point of reference today is none other that the heartless exploitation, the whims and fancy of a certain politicians of the capitalist class who practice racist hegemony and religious bigotry.

Herein lies the problem – under the NEPists' political spin, the "Point of Reference" is lost. Without it there can be no faith in the state/nation/leadership.
As a result, the Pandora's Box has already been opened - with every other person seeking out his own (read religion) to restore faith. It is already here, and threatens to explode should it not be addressed. Preventing discourse isn't going to close it.

You cannot avoid friction by preventing intellectual discourse on it (as Mahathir would). Doing so would be counter-productive, in that you breed a generation of ignorant masses who can be manipulated by selfish politicians.
The unquestioning loyalty to a leadership sets the stage for a corruption prone government and a dictatorship. In fact, you would precipitate further confusion, friction and heat on the street, if questions aren't settled by intellectuals in a rational manner.
That of course would (conveniently) necessitate the imposition of "draconian measures" to bring order, to the delight of despots.
A cursory assessment of many third-world nations and dictatorships would be proof enough to see that, even if one hasn't the experience of writing constitutions for nations.

Having said all these, I wonder if Shad in "Understanding the Social Contract" would be "inclined to agree", that the democratic state cannot survive, should this "Point of Reference" (read Federal Constitution) be lost in translation, interpretation and manifestation ...
After having read what he wrote thus far, I'm not so sure he would - at least not in UiTM!
Meanwhile, some lessons in Newton's Laws of Physics may be in order ...

1. "Every body perseveres in its state of being at rest or of moving uniformly straight forward, except insofar as it is compelled to change its state by force impressed."
2. "F = ma: the net force on an object is equal to the mass of the object multiplied by its acceleration."
3. "To every action there is an equal and opposite reaction."
- Newton's Laws of Motion

***************************************************

"It is time that the “Social Contract” be reviewed. A new “Social Contract” must be drawn up that looks into the SOCIAL structure and not RACIAL structure that the present “Social Contract” addresses. Only then can it be called a “Social Contract”. If not, then let us call it what it really is, a “Racial Contract”. "
- RPK, No Holds Barred

********************************************

Death of Democracy : Umno(Baru) Transition Recycled ....

"To all appearances, we are beginning to lose grip of the rule of law.
The use of the Internal Security Act and of Sedition Laws to target
particular individuals further erodes the credibility of the
government.
Our actions exacerbate rather than calm the fear that
stokes civil and racial strife."
-Statement from KuLi, of Umno (23.09.08)

Be careful the environment you choose for it will shape you;
be careful the friends you choose for you will become like them.
-W. Clement Stone

"Abdullah pledged to complete his promised reforms
before leaving office next March......."
- TheMalaysianInsider

******************************

At a time when the world is reeling from the financial crisis that's hitting the world markets, local warlords are fighting over the shrunken political/financial pie that they cannot seem to live without.
Politics seems to be all that our leadership seems to care about.

It is a very unsettling development that we see today- when one mild mannered and incompetent CEO, decides to effectively leave the management of state to another although retaining the post.
It is left to the workings of one who has no track record of leadership to his name (beyond the aristocratic bloodline, some "explosive issues" and the reported "Chineseblood-lust" when he declared that "May 13 has begun" ).
An unblushing full page spread of him in one of the MSM dailies, posing with piles of books so as to "look intellectual", comes to mind.
(Reminds me of the story of a politician who went to a bookstore, to buy "25 feet of books" to fill his bookshelf, with which he wanted to pose, for a photograph!).
The choreographed video of him (in his welcome address) on his blog, with his fake accent and amateurish gestures, is at best, laughable.
This is the glorious future of Umno/Malaysian leadership, (which as Anwar expects,) will wield the tongkat/baton with greater ferocity- with the help of a fascist (cum racist) 'godfather'. The "godfather" though, today makes a pretense of distancing himself from this "economist", by calling him names like 'coward' - which incidentally could very well be true.

The baton/tongkat will, in true-blue Umno "tradition", be passed on to this new "emperor designate". The new emperor will meanwhile pass the word through the "grapevine" (or the "little bird"), on his desired accomplice for the deputy,
- and the voices of Umno democracy ends there.
Just as everything else in the Malaysian "system", Umno Democracy is about the little man conforming to the desires of warlord politicians/ leaders, and not vice versa.
Anything else on show, will only be for media hype.

This new "naked emperor" will definitely need the tongkat (maybe a "fig-leaf" too) which will be wielded on behalf of the "old guard". Without the ability to bully the parliament with the two-thirds majority (and the ever present Mongolian ghost), he'll need all the tongkats available to prop himself up - and they'll have to come even from the scum of the earth.
In other words, he'll simply be the pretender on the throne - should he really manage to get there - and the same old game of mega-projects and piracy will go on (unless checked by a change in Govt).
Bakri Musa's "The Limp Replacing the Lame" could very well prove to be prophetic ....

As usual, the anointed successor will disregard the democratic process and assume the mantle of leadership with absolute/dictatorial powers, in an organisation that's supposed to practice and protect democracy.
Accordingly, he'll be showered with nauseating accolades upon accolades from all the underlings hoping for handouts and fresh opportunities to rise through the hierarchy of corruption and decadence, which has become the trademark of a racist & fascist organisation.
Without a doubt, they (the MSM) will be peddle flattery for the simpletons to consume- that he is the best, the wisest, the most fit to rule, the best leader, the most beautiful lips, forehead, chin, and not to mention "family heirlooms" which they'd scramble to kiss and worship.
Anything less would be considered "biadap" or "uncultured". To these "Pak Turuts" who make up the vast majority of the dominant political party, it's called in Umno-speak, "Malay Democracy, Leadership and Culture".
Anything else is said to be - "isn't our culture".

"He's a natural successor, etc, etc ....", said a 'political analyst' from UUM.
Perhaps, rightfully so - as he has nothing to his record, to speak for his leadership skills. He has right from the start rode on political patronage and his family name. In fact, some reports even suggest that he had once resorted to "stealing" an election victory with "postal votes" - in his own "stronghold"!
Just as the outgoing CEO was condemned for his cluelessness, the "natural successor" was apparently equally clueless (according to a "little bird") during his days, about affairs in his education ministry years. This pink-lipped wannabe however got away thus far, due to the "godfathers" who gave him protection with their tongkats, wielded as batons to club competition & dissenters to death (at least politically, if not literally).
He will, more likely that than the current "leadership", hobble along with the "tongkat" along paths thrust upon him, by the real masters at work behind the scenes.

The much publicised pledges for reforms prior to the passing of the current regime is just that - pledges, and nothing more. With real reforms, taking into account the intellectual bankruptcy of the political elite, theBN/Umno political machinery will soon cease to exist.
It is imperative that no reforms take place, if Umno is to survive.
It has to perpetuate the current system, or die!
Umno as we know it, cannot co-exist with the independent institutions of state - namely the Judiciary, Security Forces, Civil Service, Ruler's Conference. Numerous toothless commissions will probably be created as window dressing, which we have become so accustomed to.

Umno is incapable of reform - the 10 points P.Gunasegaran suggests in The Star today can only materialize in dreams, and thus, it would be more constructive for Guna to pick his nose (and The Star to stop charging readers for the ads), than advise Umno.
KuLi is there - attempting to lend some credibility to the Umno "pseudo-democracy". Being a political "has-been" and a lonely has been voice in the Umno wilderness, he today has the luxury of being realistic with his posturing, despite all his previous racist rhetoric.
With a mere 5 months to go, Anwar's scepticism on these Dollah pledges, is shared by all Malaysians of sound mind.

Those at the forefront of the campaign in the last elections had become the victims of the Umno aristocratic retribution.
Raja Petra and the Hindraf-5 have become the fall guys thus far.
Infantile attempts at making scapegoats of Teresa Kok and Ms. Tan for their own failures, (with bumbling arguments of "required protection", anti/unIslamic & what not)- and had backfired. Racial conflicts did not erupt despite concerted efforts of some parties.
To divert attention and sabotage the opposition, Anwar has hurdles piled upon him in the form of trumped-up charges. He could very well expect more "saifuls", danger to society/national security and conspiracy charges in the near future. There are others who could possibly "be on the watch-list" in an anticipated crackdown on civil liberties (a la "Ops Lalang II"), in the near future, under the 'new leadership".

As to who eventually runs the show amidst all the "wayang", it remains to be seen - as of now, 'the usual suspects' appear to be in competition, and one has already wished the other "good luck" ....
Rumour has it that one party wields a Mongolian dossier, while the other, is the master of sabotage & political subversion and has "pop appeal". Age/ time however doesn't isn't in favour of the old man - he may at best last another year, as the multiple bypass grafts to his heart have long passed their expiry dates. That he has survived this long, is in itself, one for the medical journals ....

An "Anwarista" I'm not - not by a long shot. However, it appears more than ever, that he is at present the only hope for any salvation from the "droppings" left behind by Mahathir.

This is what the crystal ball says for Malaysia- No Reforms.
Only the Mahathirist Umno (Baru) recycled.
And more than a "tongkat", Najib probably needs a "fig-leaf" ......

=========================================

Related:

• Dilema Tongkat Melayu - by YB Nik Nazmi

• United Malays National Organisation

• Ketuanan Melayu

**************************

The ISA in Malaysia - Pt. I

UPDATES from the blogs/newsportals:-

Sapp pulls out of UMNO-led Barisan Nasional

Sapp pulls out of BN; Blogger Kickdefella detained

Najib handed the "cookie jar". Pak lah is playing defence.
(no offence intended).
Beh Li Yi | Sep 17, 08 2:16pm BREAKING NEWS! updated 3pm

The prime minister says his deputy Najib Abdul Razak will take over as finance minister with immediate effect.

======================================

*(Speculative) ==>HORRORS!! - Mr "wayar putuih" (aka Nazri) for Law - again????
==> KJ to challenge Madey Jr. & Toyol in "Chief Young Turd" contest?

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**The Following is a Paper by Mr. Wong Hon Wai, entitled
The role of fundamental liberties in the evolution of Malaysia as a democratic society.
Since it may be too long to be read and understood, I have split it up into 3 parts.

ooooooooooooooooooooooooooooooooooooooooooooooo

Seed of Democracy

After World War II, the British planted the seed of democracy in Malaya. In 1955, Malayans were empowered to elect their representatives to the Federal Legislative Council. Two years later, Malayans were granted the right for self-determination and thus the Federation of Malaya became an independent sovereign country. Malaysia as a political entity came into being on 16^th September 1963 by federating the Federation of Malaya with Sabah, Sarawak and Singapore. However, in 1965, Singapore separated from Malaysia.

Throughout the history of Malaysia, there is a continuity of parliamentary democracy with regular election being held except during the aftermath of 1969 racial riots, which democracy was pronounced dead and parliament was suspended from 15 May 1969 until 20 Feb 1971. [1]

It is beyond dispute that democratic system is the preferred system for Malaysians as it provides the only long-term basis for managing competing racial, religious and cultural interests in a way that minimizes the risk of violent internal conflict within a plural society.

In 1991, the Prime Minister YAB Dato’ Seri Dr Mahathir Mohamad in a working paper presented to the Malaysian Business council, unveiled the national aspiration plan called Vision 2020[2]. Vision 2020 is about the aim that Malaysia becomes a fully developed country by the year 2020. There are 9 challenges documented in the working paper. The third challenge is fostering and developing a mature democratic society. In order to achieve these common goals, Malaysia has to benchmark its democratic system with the others fully developed countries.

Democracy is more than the ritual casting of a ballot at multi-party elections. True democracy involves participation by the people at all levels so that they have a voice in the discussions and decisions by which they are governed. But democracy must not only govern the political process, it should pervade all sphere of society, including economic and social life.

As Malaysia develops and its citizens becomes better educated and more sophisticated, the demand for civil and political rights has become louder. For increasingly larger segments of Malaysian society, a full stomach is no longer enough. The barometer for a mature democratic society is measured by the fundamental liberty enjoys by its peoples.

Fundamental Liberties Guaranteed by the Written Constitution

There are nine rights regarded as fundamental in the Malaysian Constitution (Federal Constitution) namely liberty of the person (Article 5); freedom from slavery and forced labour (Article 6); protection against retrospective criminal laws and repeated trials (Article 7); equality (Article 8); prohibition of banishment and freedom of movement (Article 9); freedom of speech, assembly and association (Article 10); freedom of religion (Article 11); rights in respect of education (Article 12) and rights to property (Article 13).

According to Dr Shad S Faruqi[3], there are 4 categories of restriction on fundamental liberties in the Federal Constitution namely:

1. Restrictions may be imposed by ordinary legislation enacted under the authority of the constitutional provision conferring the right
2. Fundamental rights may be curtailed by legislation against subversion.
3. Legislation to combat an emergency may suspend all fundamental rights except freedom of religion
4. Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law

Within the above context, the following analysis is to identify the restrictions and look into proposal to overcome them.

1. Restrictions by ordinary legislation enacted under the authority of the constitutional provision conferring the right

An examination of the constitutional provisions would disclose that there are two types of rights namely absolute rights and qualified rights. Absolute rights are those without restriction or qualification. Qualified rights refer to the provisions concerned permit laws to curtail the exercise of such rights under certain conditions. Take for instance, freedom from slavery is an absolute rights guaranteed by the Federal Constitution. In the other hand, freedom of speech is a qualified right.

Although Article 10(1)(a) grants to all citizens the right to freedom of speech and expression, Parliament may under Article 10(2) by law restrict this right under 9 grounds namely security of the Federation, friendly relations with other countries, public order, morality, privileges of Parliament, privileges of Legislative Assembly, contempt of court, defamation and incitement to any offence.

As compare to the First Amendment in the Constitution of the United States of America (USA), Article 10(1)(a) of Federal Constitution is too restrictive. The First Amendment stipulated that among other things USA Congress should make no law prohibiting the free exercise or abridging the freedom of speech.[4] As what Harding concluded Article 10 is remarkable for what it takes away rather than for what it gives. [5]

The idea that restrictions are sometimes necessary on political rights is common place in others jurisdiction. However, Article 10 fails to place any real restrictions on the restrictions. They are widely drafted that in practice there are likely to be very few possible restrictions which could not be said to come within the kinds of restriction permitted by Article 10, especially as there is nothing in Article 10 to suggest that the courts have any right to review the necessity of legislation restricting one of these rights.

In Madhavan Nair v PP [1975] 2 MLJ 264: The Malaysian High Court had declared that the use of subjective words in article 10(2) like “necessary or expedient” rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision.

In India, there is a judicial requirement that derogating pieces of legislation must be “reasonable restriction” (Article 19(2) of the Indian Constitution). Indian Constitution requires that the restrictions, even if within the limits prescribed, must be reasonable and the court would be under a duty to decide on its reasonableness.

According to Article 10 of European Convention on Human Rights, the Parliament of member states are allow to restrict political rights only so far as is compatible with the requirements of a democratic society.

With regard to Malaysia, when infringement of the right is alleged, the scope of the court’s inquiry is limited to the question whether the impugned law comes within the orbit of the permitted restriction. There would be no substantive challenge to these laws even if they were overly harsh or unreasonable.[6] Prima facie, this would seem to indicate that so long as parliament fulfilled all the procedural requirements in the passage of laws restricting free speech

The position in India and European Community is preferred, as it has allowed the judiciary to scrutinise the enabling provision of the constitution on the grounds of reasonableness and compatibility of a democratic society respectively.

2. Fundamental rights curtailed by legislation against subversion.

Powers against subversion under Article 149 Federal Constitution has curtailed the practical operation of fundamental rights. This provision also introduced the broad notions of national security into Malaysia. Legislations enacted under Article 149 may be inconsistent with liberty of the person (Article 5); freedom of movement (Article 9); freedom of speech, assembly and association (Article 10) and rights to property (Article 13) and yet remain constitutionally valid.

Article 149 of the 1957 Constitution (Merdeka Constitution) has a clause that such laws would automatically lapsed upon the expiration of one year from the date on which they came into operation. However the sunset provision was removed in the Constitution Amendment Act 1960 and the position now is such laws would continue to exist indefinitely, unless both Houses of Parliament passed resolutions annulling them.

One of the examples of such legislation is the Internal Security Act 1960. (ISA). ISA permits the Executive to detain suspects without the filing of formal charges. During the 1960s, ISA was intended to deal with the threat of communist. However, in the case of Theresa Lim Chin Chin v Inspector-General of Police [1988] 1 MLJ 293: The court ruled that ISA is valid and from the wording of the provision of the Act there is nothing to show that it is restricted to communist activities. It was held that Art 149 was not confined to the communist insurgency.

Since the terrorist attack on the World Trade Centre Twin Towers in New York City on September 11, 2001, United State of America (USA) has introduced the Patriot Act 2001. [7] This Act empowered the Attorney General to sign detention order to detain without trial. As both ISA and Patriot Act is the law on preventive detention, it will be interesting to make a comparison.

The following table summarised the difference between these two legislations.

Name	Malaysia Internal Security Act 1960	USA Patriot Act 2001
Purpose	To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.	To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes
Applicability	Applicable to all persons. (Both citizens and non-citizens)	Applicable to alien (Non-US citizens only).
Judicial Review	Judicial review is restricted. Section 8B and 8C severely limit the court’s ability to inquire into the legality of a detention except on questions of compliance with procedures.	Judicial review in terms of habeas corpus proceedings is provided by the Act.
Detention period	Section 73 allows the police to detain for 60 days any person who may act "in a manner prejudicial to the security of Malaysia." The Home Minister may authorize indefinite detention renewable every two years ad infinitum.	The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision provided for the person to be detained for up to six months. The Court ruled that Attorney General is authorized to detain aliens as long as removal is reasonably foreseeable. [8]
Restricted conditions after released	Those released before the end of their detention period are subject to "imposed restricted conditions" for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country	Either deportation or let free. No restricted conditions after released.
Report to Parliament	No equivalent provisions.	Every 6 months, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the reporting period, the details of the detainees and the grounds for the detention.
Review	The Advisory Board shall review the detention every 2 years.	The Attorney General shall review the detention every 6 months
Sunset Provision	No equivalent provisions	The Act shall cease to have effect on Dec 31, 2005.

Table 1: Comparison analysis of Malaysia ISA and USA Patriot Act

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.