Conscience of the Malaysian Constitution

Parliament is now being asked to approve another batch of amendments to the Federal Constitution, this time, a 19-page Constitution (Amendment) Bill running into 48 clauses.

The Malaysian Constitution has probably the distinction of being the most amended Constitution in the world. From a rough count, the Federal-Constitution must have amended close to 1,000 times since Independence in 1957. The present batch of amendments, for instance, involve over 60 amendments.

The Constitution of a country is the Basic Law of the country and must not be treated as any other ordinary law, to be amended at the whims and fancies of the government of the day.

What is particularly objectionable in the 1976 Constitution (Amendment) Bill is the proposal to amend Part II of the Constitution which enshrines the fundamental liberties to be enjoyed by Malaysians.

Thus, the Government proposes to amend Article 5 of the Constitution on “Liberty of the Person” in order to withdraw from persons “ arrested or detained or placed under restricted residence under any law relating to the security of the Federation, preventive detention, restricted residence, immigration or banishment” the fundamental right as presently provided under Article 5(4) to “without unreasonable delay, and in any case within 24 hours be produced before a magistrate and shall not be further detained in custody without the magistrate’s authority.”

I am glad that because of adverse public opinion, the government is withdrawing its earlier proposal to deny such persons their present constitutional right, as provided in Article 5(3), to be “informed as soon as may be of the grounds of arrest” and to consult and be defended by a legal practitioner of their choice.

The amendment to Article 5 to deny the persons “arrested or detained or placed under restricted residence under any law relating to the security of the Federation, preventive detention, restricted residence, immigration or banishment” within 24 hours to be produced before a magistrate constitutes a serious erosion of fundamental liberties guaranteed under the Constitution. It removes with one stroke of the pen an essential safeguard and check against arbitrary exercise of power by the executive and in particular, by the police forces, making Malaysian citizens even more naked and helpless in the face of police abuse of arrest and detention powers, which are becoming more and more frequent.

The increasingly serious security situation can be no justification for this constitutional amendment which derogate from Malaysians their fundamental rights as enshrined in the Federal Constitution.

We should not forget that the Federal Constitution was drawn up and promulgated at a time when the country was faced with an existing emergency in the form of communist insurgency.

At that time, the Constitution defined and guaranteed certain fundamental individual rights because they were generally regarded as essential conditions for a free and democratic way of life. Even more important, these fundamental individuals rights were the distinguishing marks which the Government asked of the system of government Malayans, and subsequently Malaysians, were called upon to defend and protect after Independence, and the system of government which the communist insurgents seek to establish.

In fact, the Constitutional Commission in its report in 1957 states “the rights which we recommend should be defined and guaranteed are all firmly established now throughout Malaya and it may seem unnecessary to give them special protection in the Constitution. But we have found in certain quarters vague apprehensions about the future. We believe such apprehensions to be unfounded, but there can be no objection to guaranteeing these rights subject limited exceptions in conditions of emergency and we recommend that this should be done.”

Twenty years after Merdeka, these “vague apprehensions about the future” discounted by the Constitutional Commission have come to pass, and fundamental rights which the people had enjoyed, even in the worst days of the 1948-1960 Emergency, are now to be removed despite the fact that it has been guaranteed in the Constitution.

Is this an admission that the security situation faced by Malaysia is or is likely to be even more challenging, bleak and grim than during the first 1948-60 Emergency, as to justify such curtailment of fundamental rights of which were respected and honoured in earlier emergencies?

Government leaders, in particular, the Deputy Prime Minister, Dr. Mahathir bin Mohamed, have used as one of the recurrent themes the things that Malaysians will lose should the communists come to power in Malaysia, especially freedoms and liberties. of the individual.

Now, the fundamental liberties of Malaysians are themselves being tampered with by the Government. What then are the fundamental liberties Malaysians will lose if the communists come to power in Malaysia, especially as the government keeps to its past record and practice of systematically whittling away by piecemeal legislation of such enshrined liberties.

The National Front Government and Parliament must weigh seriously the question posed by the Bar Council when it stated its opposition to any modifications to Article 5 of the Constitution. The Bar Council had said:

“One basic difference distinguishes those who are loyal to this country from those who are bent on overthrowing it; and that is, the former have respect for the law. But harsh and unjust laws cannot command respect willingly; and a law which treats persons who may have committed ordinary crime in the same way as it does communist terrorists cannot be a good law.

“What distinguishes our system of government from that advocated by our adversaries is the fundamental rights protected by the Constitution. Are these not what we are fighting for?”

The purpose of enshrining fundamental rights in the Constitution is to ensure that the government recognized by the Constitution is a government of laws and not of men.

Even at present, notwithstanding the provisions of Article 5, of the Constitution, there have been many cases of persons arrested under the Restricted Residence Enactment who have been detained for a considerable length of time without production before a magistrate within the prescribed time.

There are also more and more cases of abuses of police powers of arrest on trumped-up charges, and of the detention of persons who pose no threat whatsoever to the law and order or security of the country, without proper effective remedy.

The Minister of Home Affairs who sign these orders of detention or restriction would not know in the overwhelming majority of cases the truth or untruths of the charges that had been prepared at the lower levels of the police hierarchy.

Only recently, there was an insurance agent in Malacca, a father of two, whose wife is a graduate teacher, who has a steady occupation, who was detained under the Public Order and Prevention of Crime Ordinance.

He was subsequently served with an order of detention signed by the Minister of Home Affairs and sent to Pulau Jerajak on the fantastic charge of ‘extortion’. The police acknowledges that this person has no secret society connections, has no record of previous convictions, and there are many people in Malacca who can vouch for him. This insurance agent, however, does make a nuisance of himself when he drinks in bars and nightclubs, getting into arguments with police officers, but surely this is no justification for framing him up with allegations of extortion which in any event would be more properly be a case for public prosecution – and to send a person with no previous convictions or secret society connections to the Pulau Jerajak?

How many cases are there of such misuse of police powers of arrest and detention in the country? This amendment will weaken and even remove the checks and controls on arbitrary abuse of power by police officers at lower levels, which the Minister does not know, and who is too busy with the pressing security situation, to know.

Conscience of the Constitution

This amendment in fact will give a further spurt and stimulus to the irresponsible group of police officers who often take the law into their own heads. Thus, on 24th May at about 10 a.m., a 19-year old odd-job labourer, Armugam s/o A. Vengadasalam I/C 8254725, staying with his parents at Jalan Cheras Municipal ts, Quarters, was taken to Jalan Cheras Police Station as a suspected drug addict. He was assaulted by police officers in the police lock-up until he lost consciousness. He was brought to High Street Police Station in a state of unconsciousness. His body was sent over to the Kuala Lumpur General Hospital mortuary at about 3 p.m. the youth’s mother had gone to Jalan Cheras Police Station to see his son at about 12 noon, but was refused permission. At about 8 p.m., the parents were informed by a Runkun Tetangga unit that their son had hanged himself in the High Street Police Station lock-up.

The deceased’s brother, Paneselvam, was later informed by the Police that Armugam hanged himself with his trousers, and claimed that Armugam was allowed to keep his trousers because he did not have underpants on. Paneselvam however noticed that Arumugam was wearing his purple underpants when he went to the mortuary to recognize the body. The father of the deceased lodges a police report at the High Street Police Station the following day, but no action has been taken to date.

These brutalities and ‘official murders’ of Malaysians by some irresponsible police officers are becoming too often and frequent. The present amendment, in removing another check on abuse of police powers of arrest and detention, will not reduce such incidents but only increase them.

This is where the battle for the hearts and minds of the people are being lost! If this amendment is adopted, then the Federal Constitution will become even more out of touch with the people’s life, aims and aspirations, and become rather empty as it would have failed to protect individual human rights, liberties and values!

Fundamental Rights Clauses – Conscience of the Constitution

Part II of the Federal Constitution on the Fundamental Liberties of Malaysian is the conscience of the Constitution., in spelling out Malaysia’s commitment to a free and democratic society.

In Malaysia, the conscience of the Constitution, spelling out the fundamental rights to life, liberty, property, free speech, free assembly and association, and even freedom of religion, had been subject to repeated assault by the government, either in the form of constitutional amendments or other forms of government action, probably with one exception. This is the Right to Property, which speaks eloquently of the unequal and undemocratic society we have, as property is the possession of the few but individual rights the rights of many.

Rule of Law again under assault

The present batch of constitutional amendments is another serious assault to the principle of Rule of Law in Malaysia.

I had pointed out during the debate on the Essential (Security Cases) Regulations in December last year that the government’s definition of the Rule of Law is a very primitive one, as seen by the Commentary in the Rukunegara which states: “The Rule of Law is ensured by the existence of an independent Judiciary with powers to pronounce on the constitutionality and legality or otherwise of executive acts.”

What is the use of an independent judiciary when the laws allow arbitrary interference with the fundamental rights and liberties of the individual?

Malaysia is rapidly reaching a state where there is no more Rule of Law, but Rule by Law. Every system of government, including totalitarian and inhuman soulless ones, has a legal system order. Every system of government must of necessity has a Rule by Law.

Even the Nazi system had a legal order, a Rule by Law. But there was no Rule of Law, by which is meant that powers of government should be restrained so as to protect as far as possible the ‘personal freedoms’ and ‘fundamental rights’ of individuals.

What makes the proposed amendment to Article 5 so unsupportable is that no good reason has been adduced to show why what Malayans and Malaysians enjoy in previous emergencies cannot be enjoyed by Malaysians today!

Retrospective legislation

The provision for the retrospective effect of various constitutional amendments is an even greater blow to the Rule of Law, for retrospective legislation is in principle deplorable as it makes legal what was illegal when done, or renders illegal what was legal when done.

Retrospective legislation, except in extraordinary circumstances, have no place in a country which believes in the Rule of Law.

The 1976 Constitution (Amendment) Bill provides for the retrospective effect not for one amendment, but for four amendments.

Thus, Clause 4 of the Bill provides that the amendment to Article 5 of the Constitution depriving a person arrested or detained or placed under restricted residence the right to be produced before a magistrate within 24 hours is to have retrospective effect all the way back to Merdeka Day twenty years ago.

Clause 17 of the Bill provides that the amendment to Clause (2) of Article 65 to enable the Yang di-Pertuan Agong to appoint a Clerk to either House of Parliament from amongst members of the public services on secondment is to have retrospective effect all the way back to Merdeka Day. I shall have more to say about this particular amendment later on.

Clause 28 of the Bill seeks to insert a new Article 125A to enable the Lord President and all judges of the Federal Court to exercise all or any of the powers of a judge of a High Court. This new article is deemed to have been an integral part of the Constitution as from Malaysia Day.

Clause 30 of the Bill which seeks to amend Clause (1) of Article 135 by adding a further proviso to provide that dismissal or reduction in rank by an authority delegated by a Commission with a power to do so shall be valid notwithstanding that such authority is at the time of the dismissal or reduction in rank subordinate to that which at that time has power to appoint a member of that service of equal rank. This provision is to have retrospective effect as from Merdeka Day on August 31, 1957.

I have studied these four proposed amendments and for argument’s sake, even if one accepts the need for such amendments to the Constitution, there are not good national reasons why these amendments should have retrospective effect all the way back to Merdeka Day in 1957. in view of my criticism and opposition to the amendment to Article 5, and my reservations to Clause 17, 28 and 30, there is even less compelling reason to effect retrospective operation for these amendments.

One feature stands out sharply from the proposal to provide for retrospective effect for these amendments. The government had committed irregularities and even illegalities in all these areas covered by these four amendments, which it now proposes to regularize and legalise. This is most shocking, and is the result of one of two causes. Either the government has been consistently getting atrociously bad legal advice, or the Government has consistently shown little respect and a lot of contempt for the Rule of Law, disregarding Constitutional safeguards and provisions, operating as if in Malaysia there is a government of men rather than a government of laws.

Parliament should not be asked to legalise past government illegalities and regularise past irregularities unless and until Parliament is informed of the catalogue of illegalities and irregularities that have been committed under each head, and an opportunity to weigh the magnitude and enormity of such illegalities and irregularities.

In fact, retrospective legislation is so obnoxious that there should be a special Parliamentary procedure requiring the government to make a full and frank disclosure of the illegal or irregular acts that the government intends to validate by such retrospective legislation.

Has the Government committed sedition in proposing an amendment to citizenship laws which is an ‘entrenched’ and ‘sensitive’ subject’?

Clause 7 of the Bill seeks to amend Article 24 of the Constitution so as to render liable to deprivation of citizenship any citizen who voluntarily claims and exercises in a country outside the Federation, regardless whether it is a Commonwealth or a non-Commonwealth country, any rights accorded exclusively to citizens of that country. The amendment would remove the distinction in the present Article in relation to Commonwealth and non-Commonwealth countries.

As citizenship is one of the four ‘entrenched’, ‘sensitive’ issues, and as the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Constitution relating to citizenship; Article 152 relating to the National Language and the language of the other communities; Article 153 relating to the special position of the Malays and the legitimate interests of other communities; and Article 181 relating to the sovereignty of Rulers, is prohibited by the Amendments to the Constitution in 1971 as a prelude and precondition to the reconvening of Parliament following the NO rule, punishable as an offence of the sedition, is the government and the Prime Minister committing an offence of sedition in proposing an amendment to Part III of the Constitution relating to citizenship?

Let me quote from the Attorney-General, Tan Sri Kadir, when winding up his speech on the 1971 Constitution (Amendment) Bill in the Senate on March 9, 1971:

“Mr. President, Sir, allow me to explain what I have said for the interest of all in this House who might be involved later on. I hope such an incident will never occur in this House. For instance, the Law which forbids the questioning of any of the provisions in Section III i.e. citizenship. Although it may sound short and simple, in actual fact there are three parts to it, i.e. Part One, attainment of citizenship; Part Two, termination of citizenship and Part Three, Extension. Section III contains 17 items and all are protected. This means all terms and conditions for obtaining citizenship and for terminating one’s citizenship by the Government as enshrined in the Constitution cannot, in any case, be questioned although one might raise only one of the terms and conditions. We must fully understand this.”

Clause 7 of this Bill questions Part III, Article 24 of the Constitution regarding termination of citizenship, and in seeking to amend this entrenched protected Clause, has the Prime Minister and the Government committed an offence of sedition as expounded by Tan Sri Abdul Kadir? In fact, in printing this very Bill amend an entrenched Clause, on citizenship, has the Government and the Government Printer committed an offence of sedition in questioning Part III of the Constitution?

Will Members of Parliament, while in the course of debate, whether giving their views in support or opposition to this proposed amendment to entrenched Part III of the Constitution, which would involve a questioning of Part III of the Constitution relating to citizenship, be committing an offence of sedition?

As Members of Parliament have lost their parliamentary immunity in connection with the four entrenched subjects, Members of Parliament, including the Prime Minister, can be sued for questioning any one of them, whether in the form of expressing support for an amendment to one of the entrenched Constitutional clauses, or voting in support of it, in the Dewan Rakyat.

There is no difference between expressing support for the amendment of one of the entrenched clauses or voting in support for such an amendment, as both constitutes a questioning of one of the entrenched, sensitive clauses.

If Part III of the Constitution on citizenship can be amended as it is presently proposed, then it is also possible for the government, or for any Member of Parliament by way of private member’s bill, to amend or propose amendment not only to Part III of the Constitution, but also to Article 152 relating to National Language and the languages of the other communities; Article 153 relating to the special position of the Malays and Article 181 relating to the sovereignty of Rulers, and explain both inside and outside the Dewan Rakyat why such amendments are necessary.

If this view is contested, then it can only mean that out of the four entrenched subjects, Part III is less entrenched than the other three entrenched clauses, so that Part III of the Constitution on citizenship can be further amended with regard to the terms of acquisition and termination of citizenship while the other entrenched subjects are immune to any amendment. I hope the Prime Minister will make a clear statement on this when he winds up the debate tomorrow. The question that must be answered is how do you amend any one of the entrenched clauses, without at the same time, questioning the present entrenched provisions, and therefore contravening the law which prohibits any questioning of any one of the entrenched issues! What is there to prevent any citizen to file a complaint with the Police that the Prime Minister or Members of Parliament have contravened the Sedition Laws in supporting or voting in support of an amendment to modify the entrenched Part III?

An independent Clerk to House of Representatives pre-condition to an independent Parliament

I am opposed to Clause 17 of the Bill which seeks to amend Article 65 of the Constitution governing the appointment of Clerks of Senato and Dewan Rakyat.

It is one of the fundamental pre-conditions of an Independent Parliament, which is not a creature subservient creature of the Government of the Day but on the contrary its Master, that there should be an independent clerk, whose appointment is not and tenure of office is not dependent on the whims and fancies of the Government of the day, and subject to government pressures.

This is why the Parliamentary service is a completely autonomous and closed service. This is also why Article 65 of the Constitution provided the safeguards for an independent Clerk.

Thus Article 65 provides that the Clerk shall be appointed by the Yang di-Pertuan Agong and shall hold office until he attains the age of 60 years or such other age as Parliament may by law provide, unless he sooner resigns his office. This Clerk may be removed from office on the like grounds and in the like manner as a judge of the Federal Court, and a representation made by the Speaker of the House.

It is now proposed to bring in an amendment which will enable the appointment of a Clerk from amongst the members of the public services for short periods, or in other words, on secondment, and to give retrospective effect to this amendment to Merdeka Day in 1957.

This amendment will destroy the whole principle of an autonomous Parliamentary service which is answerable only to Parliament and not to the Government of the day.

The Government had many times, violated Article 65 of the Constitution in appointing public service officers to the post of Clerk of the House on secondment, and now Parliament is asked to regularize all these past irregularities.

The Clerk should be appointed from the Parliamentary service, or if he is appointed from the public service, he should cut all ties with the public service and be the sole servant of the House. No Clerk who is the servant of two Masters, namely Parliament and the Government to whom he is to return at the end of his secondment, can properly discharge his responsibilities as Parliament’s principal executive.

Insecurity of tenure for officers in the Public Service

Clause 30 of the Bill seeking to amend Article 135 will create not only an inseurity of tenure, but expose officers of the public service to unscrupulous victimization and McCarthy-type of persecution.

Article 135(2) of the Constitution provides that “No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard.”

The services referred to in Article 135(2) are:

(i) The judicial and legal service;
(ii) The general public service of the Federation
(iii) The police force;
(iv) The railway service;
(v) The joint public services;
(vi) The public service of each state.

The government is now amending this Clause to enable the dismissal or reduction in rank without giving the public servant a reasonable opportunity of being heard, in four specified circumstances, namely, –

(a) where a criminal charge has been proved against the public servant;

(b) where the authority empowered to dismiss or reduce in rank is satisfied that it is not reasonably practicable to carry out the requirements of the Clause, and records in writing its reasons for being so satisfied; or

(c) Where the Yang di-Pertuan Agong, or, in the case of a member of the public service of a State, the Ruler or Yang di-Pertua Negeri of that State, is satisfied that it is not expedient to carry out the requirements of the Clause in the interests of the security of the Federation or any part thereof; or

(d) where a public servant h as had an order of-detention, supervision, restricted residence, banishment or deportation made against him under any law relating to the security of the Federation, prevention of crime, preventive detention, restricted residence, banishment, immigration, or protection of women and girls or where there has been imposed on such a member any form of restriction or supervision by bond under any of the above-mentioned laws.

It is public knowledge that many persons have been falsely detained or placed under supervision or restricted residence, and that the Police or the Minister who caused such detention, supervision or restricted residence do not have to give valid reasons as whatever reasons they give cannot be challenged in a Court of Law. This means a public servant can be dismissed without good and proper cause, by means of serving upon him a order of detention, supervision or restricted residence. This makes not only a mockery of Rule of Law but introduces a most dangerous principle into questions of security and stability of employment in the public services.

Detention without trial – Detainees should have the right to know recommendations of Advisory Board

Clause 40 of the Bill amends Article 151 of the Constitution. Article 151(2) provides that “Where any law or ordinance made or promulgated provides for preventive detention”, namely Internal Security Act, Prevention of Crime Ordinance, etc., “no citizen shall be detained under that law or ordinance for a period exceeding three months unless an advisory board (appointed by the Yang di-Pertuan Agong) has considered any representations made by him and made recommendations thereon to the Yang di-Pertuan Agong.”

This means that the Advisory Board must consider any representations made by a detainee against allegations for his detention and make recommendations to the Yang di-Pertuan Agong within three months’ of detention.

This is now amended to extend the time to allow the Advisory Board more leisurely pace to consider representations, although fundamental rights to liberty are involved. Under the proposed new Article 151(2), Advisory Board is required to consider representations not within not three months of the detention, but “within three months of receiving such representations, or within such longer period as the Yang di-Pertuan Agong may allow.”

This is a provision to allow the Advisory Board to take one year or two years to consider a representation by a detainee!

The Advisory Board is generally regarded as a show-piece without real meaningful powers or influence. It has not been know to effect the release of detainees who had been wrongfully detained. Even in the rare cases where the Advisory Board recommended that there are no good grounds for the detention of a person, as in the case of Dato James Wong of SNAP, the release was eventually made, not onl the recommendations of the Advisory Board which were at that time rejected, but based on political considerations of getting the SNAP into the Barisan Nasional.

If the Advisory Board is to serve any useful purpose, then a detainee must have a right to know what recommendation it has made to the Yang di-Pertuan Agong after consideration of his representation.

Article 151, in purporting to provide restrictions on preventive detention by the constitution of an Advisory Board, has failed completely to provide a proper check and control on the abuses of powers of detention without trial. I call on the Government to abolish all laws which permit detention without trial, so as to put an end to the gross abuses of such detention powers by Police officers.

Call on the Government to honour the Merdeka understanding with regard to appointment of Malacca Governor and Chief Minister

Under the new amendments, the Governors of Malacca, Penang, will now be known as Yang di-Pertua Negeri respectively.

I n this connection, I want to remind the Government to hour the Merdeka understanding that in the case of Malacca, the high posts of Malacca Governor and Chief Minister would be alternated between a Malaysian Chinese and a Malay. The former Prime Minister, Tun Razak, when moving the 1971 Constitution Amendment Bill spoke of the “careful and balanced character of the Constitution which was so painstakingly negotiated and agreed upon by the major races in Malaysia before we attained independence.” This understanding, both in letter and spirit, explicit and implicit, must be honoured. In Malacca, this understanding has not been observed. In fact, we have at present the sorry spectacle in Malacca of the MCA Malacca President, Dato Tan Cheng Swee, desperately clinging to the post of Malacca Municipal Commissioner when he had been abused, disgraced and condemned by every UMNO branch in the State!

In conclusion, this DAP cannot support the present batch of amendments because they constitute:

1. serious erosion of fundamental liberties of Malaysians;
2. negates the Rule of law by providing for unjustifiable retrospective legislation;

While we support a few of the amendments, like the Clause 26 and 27 to increase the number of Federal judges and High Court judges to deal with the backlog of cases, so that justice is speeded up, as ‘justice delayed is justice denied’, the DAP cannot accept the Bill because the other amendments involve even more important principles on which the continued survival of Malaysia as a democratic nation depends.

Speech by Ketua Pembangkang and DAP Member of Parliament for Kota Melaka, Lim Kit Siang, in the Dewan Rakyat on Monday, 12.7.1976 on the Constitution (Amendment) Bill 1976