There are significant matters at issues in the current debate raging in Malaysia about ‘democratic rights’, ending the NEP for Malays and for amendments to the constitution on matters such as religious rights, political and social freedoms (more freedom of expression). Added to the mix is that perennial call for abolishment of the ISA. Each of these needs closer and critical examination.
The changes being called for, if implemented without proper informed debate, as advanced by some quarters, it is believed will deliver universally social and political change without any negative consequences for the community at large. Such a premise being advanced by a raft of opposition groups in Malaysia is patently a false premise fraught with danger.
CONSTITUTIONAL FREEDOMS RIGHTS AND LIBERTIES
Malaysia’s constitution is clear on the issue of religion. In fact it is quite clear on a number of other issues relating to personal and collective liberties and individual rights. Not though if you are a ‘ Red Guard Cultural Revolutionary’ (vocal members of the opposition). And that’s where the problem lies.
It may be argued otherwise by the Red Guard Cultural Revolutionaries than what is contend in this essay, accepted and understood by many. In the absence of specific minutia of the offending provisions of the constitution a general attack on the constitution as being ambiguous in this regard has little substantive support at law. In fact such attacks attract the exact opposite reaction and tempts the incumbents in power to bring these challenges on the constitutional to the fore.
It is unequivocally spelt out in the Constitution of Malaysia for instance that Malaysia is a Muslim country and that other religions ‘May’ be practiced alongside it subject to the peace, order and stability (my words) condition prevailing. Implicit in that condition is the government’s inherent and sovereign right to ensure peace order and stability in applying and or interpreting that ‘right’. A conditional right it is in any language or reading of the constitution.
As to the contentious issues of ‘freedoms, rights and liberties’ whilst under arrest or detention triggered by the controversial ISA (Internal Security Act), it remains to be seen whether or not this is a ‘red herring’ dangled by Red Guard Cultural Revolutionaries or whether it is a complaint simply promoted by elitist detainees against an essential protective measure in the hands of government. Can and should the ISA be abolished? What are the implications if it is abolished?
Most of the fundamental liberties in the constitution of Malaysia enumerate a host of qualifying or restrictive clauses. These restrictive clauses refer to such considerations as “public order” “security of the federation” or ”Public Health” or “Morality”.
Karam Singh and Tan Boon Liat are perhaps authoritative and instructive on the issue of detention and the application of Article 5(1) of the federal constitution.
Article 5(1) of the Malaysian Constitution refers only to the substantive provisions of the law without regard to procedural aspects.
That being the case the court found in both cases that an order of detention was valid, even though there were procedural defects in that order of detention. After noting that Article 54(1) of the constitution made no mention of the word procedure Sufian J in his concurring opinion in the judgement observed:
“In Malaysia for detention to be lawful, it should be in accordance with law, not as in India where it must be in accordance with procedure established or prescribed by law”;
It has been pointed out that:
The Malaysian courts have interpreted ‘law’ to mean ‘enacted law’ and therefore Articles 5 and 13 impose restrictions only on the executive and not on the legislature.
To understand detention without trial we first have to examine the extent to which such detention is practiced on a daily basis for which there is no hue and cry from the emergent Cultural Revolutionaries in our midst. Bail is a right under the common law and in theory.
BAIL AS A BREACH OF THAT PERCEIVED RIGHT
Bail as a right is also subject to qualification and discretion in the hands of courts. It is probably the most outstanding example of detention of individuals without trial who have not been proved in any court to have committed an offence punishable by detention. Yet the issue of being bailed is not ventilated by Red Guard Cultural Revolutionaries (read DAP, Kok, Elie Wong, Nutgraph, RPK, Hindraf, Malaysian Bar Association and other neo Marxist protagonists) for debate. Instead they simply refer to the ISA as a draconian piece of legislation and call for its removal from statute.
OTHER FORMS OF DEPRIVATION OF LIBERTY WITH IMPUNITY
Strangely people do not appear terribly concerned if individuals who are carriers or suspected carriers of contagious and dangerous diseases were kept in confinement or quarantined without trial or right to challenge. It is arbitrary.
One supposes the reason for such tolerance of the deprivation of an individual’s liberty in such circumstances is based on selfish interests. It is about self-preservation. Quarantining or confinement is often done to protect not the incarcerated or isolated individual but the public from contamination and fatal outcomes of not doing so.
Even so the executive under a public health ordinance is required to take such steps which often finds (depending on the strength of the lobby concerned) wide acceptance even amongst human rights groups (through their silence).
The ISA was never intended to be abolished or discarded as a piece of protective legislation. Perhaps retained under a different name and with wider powers to government and its security apparatus like it is in the US under its homeland security and patriot act, yes. Crime and security issues of the nature, complexity and ferocity we face today could have never been in the contemplation of the founding fathers of this or any other nation. Yet the arguments for abolishing the ISA, the least of many evils available to government to maintain security is currently leading to ill informed debate exposing national security and peace to unforeseen threats and dangers.
Freedoms of expression, religion and assembly everywhere is subject to conditions of security and any other threat to peace and stability. These are paramount issues foremost in the minds of government and its agencies and for good practical reasons. In fact the protections afforded the general public by virtue of the ISA are a part of those goods and services we demand of government if one accepts that doctrine of that much hackneyed term “Social contract” and are honest about what it means.
In return for security, peace and stability we surrender certain individual rights and liberties to the sovereign. There is also occasion when these liberties and rights are unreasonably denied citizens by authoritarian governments. We have too many examples in Malaysia’s own neighbourhood to ignore the relative strengths and tolerance of the current government in Malaysia often distorted by Red Guard Cultural Revolutionaries in Malaysia.
The term freedom of expression is heavily qualified in the only other common law former British colony in the region, Singapore. Whilst it is their right as a sovereign state to interpret the concept of constitutional rights (under the Westminster system) for their citizens in a way they chose fit because they claim a majority in parliament, so too it is the right of any other government to act in the exercise of its sovereign right in applying their discretionary powers as to how they would or should interpret citizen’s rights.
FREEDOM OF EXPRESSION AND THE EXCEPTION IN SE ASIA
As for reasonableness, I invite you all to consider the position of minorities in neighbouring countries before condemning Malaysia’s government seeking to radically change its existing constitution to something untested and radically new.
For decades and only till recently it was an offence punishable by both lynch mobs and government sanction to have cultural icons and foreign language script (read Chinese) publicly displayed outside shops or places of worship in places such as Indonesia, Thailand, Vietnam, Cambodia, Laos and Myanmar.
The punishment that was dished out to offenders in these places is evident from the documented pogroms against the mainly Chinese merchant classes in these countries up to as recently as early 2000.
Malaysia on the other hand has been tolerant of these issues and cultural practices by its minorities, in fact encouraging to the detriment of Malays nationalism, Chinese and Tamil vernacular schools and multi faith congregations in its midst. The resultant ingratitude demonstrated by the Red Guard Cultural Revolutionaries in Malaysia can best be described by analogy to the story of the “Arab and the Camel in the Tent”.
EXCLUSION OF MALAYS IN CHRISTIAN SCHOOLS
Even though Malays were restricted by a silent unpublished quota in Catholic and other Christian schools under the British, the practice continued unabated after independence till Tun Dr. Mahathir stepped in. Malaysia continued to allow religiously segregated schools and communities in its midst in an example of tolerance not seen in any community for centuries. That favour by the Malays has not been reciprocated by non Malays in many instances.
The growth of this intolerance and ingratitude has its genesis and its roots in the Red Guard Cultural Revolutionaries and their own cultural and political loyalties.
Today we are witness to an unprecedented level of Malay Muslim bashing reminiscent of the Bush, Blair and Howard Nazi style campaigns against manufactured devils in their midst.
The runt of that lie is being picked up and run now in a politically and morally bankrupt campaign run by Red Guard Cultural Revolutionaries whose Wall Posters is the internet. Nothing short of Maoism in a more modern form.
RELIGION AND RELIGIOUS CONVERSION
It would be hypocritical for those who condemn the government for not intervening in the Lina Joy case to say that there is no outrage and wringing of hands and gnashing of teeth amongst non Muslims when a non Muslim converts to Islam.
Such reaction is no less the result of the emotions generated out of a feeling of self preservation in much the same way Chinese and Indians tend to cringe at the thought of one of their own marrying outside of their communities.
If Lina Joy was serious about her conversion and her new faith, the provocation of telling the whole world about it (proselytization) and alerting the authorities would have not arisen in her mind. Where it is unnecessary otherwise on a subject as sensitive as conversion of a Muslim in a Muslim state, she should have been advised to be discreet and to keep quiet about her conversion and to have moved on with her life.
There is no requirement in Catholic doctrine for her to have provocatively made it into an issue for public debate and incitement to public disorder. Instead Lina Joy chose with active encouragement of the church, to become their ‘pin up girl’ on conversion into Catholicism and allow herself to be used as a tool of a political campaign of interference by a sovereign state, the Vatican into the internal affairs of another sovereign state Malaysia, a state to which her loyalties should properly belong .
The point about the Lina Joy issue is not about the right to practice one’s faith in a secular Malaysia. It is about the freedom to practising that faith subject to the peace, public order, security in exercising that right.
Unfortunately instead of the exercise of her right to do what she wants to with her life in private, she chose to allow herself to be used as a test case to test the political temperature for tolerance of an issue as sensitive as the subject of religion and religious conversion ( a prohibition implied in the constitution) by making her conversion to Catholicism very public.
The nonsense of Shariah dominance or its ascendency over the common law through its perceived usurpation of the constitution has emerged as a convenient threat to peace and stability driven by a less than enlightened Malaysian Bar in an effort to politicize its own existence.
If the truth be known, elements of Shariah law is already widely accepted in the US, the UK and in Malaysia by the acceptance and practice in these countries of Islamic finance and banking. The source of law on that subject is the Shariah.
It is convenient though for the Red Guard Cultural Revolutionaries to add an unwelcome dimension to Shariah by highlighting its outdated and misinterpreted practices in some aspects in backward feudal mainly Arab and African societies.
CHANGING THE CONSTITUTION
Discussion of what it means to change the constitution will be discussed in a yet to be published article. Suffice it is to say that none of the thin arguments initiated by the Malaysian Bar will carry the day, as their arguments constitute an embarrassment and demonstrates a profound lack of knowledge of their own constitution.
KETUANAN MELAYU ON THE ASCENDENCY BY DEFAULT
Powers in the hands of the incumbent the government, will allow it to radically alter the constitution to ensure ‘Ketuanan Melayu’ is understood. It does not take an Einstein to acknowledge that government can and may if it is pushed too far to alter the constitution to the extent it could well and lawfully do to extend it under the powers it enjoys as the incumbent in office to restrict public debate on various issues of a political nature, put an end to vernacular education as being not in the national interest or to widen the concept of the NEP and gradually remove through alteration individual provisions of the present constitution of Malaysia .
It does not take much for government to achieve that purpose in the context of the current constitutional arrangements. The provocative rhetoric of the Malaysian Bar, Theresa Kok, RPK, Elizabeth, Lim Kit Siang and Anwar Ibrahim could well spur the power of the incumbent in office to reduce constitutional conventions guaranteeing freedoms of expression to a point Malaysia will blend well with the undemocratic heavy handed neighbours who enjoy the patronage of their powerful western allies for the cheap goods and services they produce for the benefit of western markets using compliant and sometimes forced labour.
If that’s what the Red Guard Cultural Revolutionaries seek then that’s perhaps what they may unintentionally get in the end. But is it really what we want?