Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang, at the official opening of the Second DAP Human Rights Convention at Hotel Berlin, Penang on Saturday, 1st February 1986 at 6 pm
DAP calls for a Constitutional Commission to review the Malaysian Constitution on the occasion of its 30th Anniversary next year to give reality to the constitutional guarantees of fundamental liberties
In 1956, the Reid Commission was formed to recommend the form of Constitution the new nation of Malaya should take. The Reid Commission recommended the definition and guarantee of ‘certain fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life.’
The Reid Commission said that there could be no objection to guaranteeing these rights ”subject to limited exceptions in conditions of emergency”. It added: “The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to enforce these rights and to annul any attempt to subvert any of them whether by legislative or administrative action or otherwise.”
In the last 29 years, the constitutional guarantees on fundamental liberties have proved rather illusory, as the ‘exceptions in conditions of emergency’ has turned into the order of the day with the imposition not only of permenent and perpetual emergency, but of multiple emergency – as Malaysia is currently under four Proclamations of Emergency.
The Reid Commission’s hope, that ‘the supremacy of the law and the power and duty of the Courts’ to enforce the Constitutional guarantees by annulling any attempt to subvert any of them whether by legislative or administrative action or otherwise had also proved illusory, as the Courts have been reduced to ratification chambers of such subversion of constitutional guarantees of fundamental liberties.
For instance, the Courts have no choice but to administer the obnoxious ESCAR laws, which overturn the fundamental principle that a person is presumed innocent until proved guilty and which permits the prosecution to produce unidentifiable witnesses.
The Courts also seem helpless at the blatant subversion of fundamental liberties. For instance, in violation of Article 10 on Freedom of Speech and Expression, the Executive banned public rallies to deny the Opposition the opportunity to reach the masses with its views and policies, while the ruling parties themselves are not inhibited by such a ban. Currently, the Prime Minister, Datuk Seri Dr. Mahathir Mohamed, is going round the country holding illegal public rallies purportedly to fight rumours which are being spread about him, but really to prepare for the coming general elections.
The Prime Minister’s current series of illegal public rallies throughout the country, and the 1983 series during the Constitutional Crisis, epitomise the Executive’s subversion of the constitutional guarantees on fundamental liberties and its contempt for the rule of law and the principles of justice and fair play.
Memali Incident – Why invocation of ISA?
Memali Incident is another example of the subversion of the constitutional guarantees of fundamental liberties, of Malaysians.
After the Memali Tragedy which killed 18 persons, the government said that those detained in connection with the Memali incident would be charged in court, where they would be given an opportunity to defend themselves.
It was reported that those arrested would be charged for five offences, namely:
* Carrying offensive weapons in public places;
* Rioting with offensive weapons;
* Harbouring Criminals;
* Wrongfully restraining police officers from carrying out their duties;
* Criminal intimidation.
But now the government has decided to detain 36 of them under the Internal Security Act, where they would be detained definitely without trial, without the benefit of judicial review or intervention.
Right of Non-Muslim parents over custody and guardianship over their children
There is a long catalogue of violation of fundamental rights of Malaysians guaranteed in the Constitution, which will be discussed in the various papers tomorrow. I do not propose therefore to anticipate the debate.
I wish, however, to raise a subject which is becoming a matter of increasing concern to Malaysian parents, and which, if not resolved satisfactorily, could gravely undermine family integrity, social harmony, inter-racial and inter-religious relations as well as nation-building.
Article 11(4) of the Malaysian Constitution specifically prohibited the propagation of any religious doctrine or belief among Muslims. There is no such counter-restriction to protect the Malaysians of other religions or religious beliefs.
But this is not the problem. The problem is that more and more non-Muslim parents find that they are losing custody and guardianship of their children, whether boys or girls, even below the age of I8, who are taken away from their possession on the ground of embracing the Muslim faith, and this is causing family break-up, social harmony, racial tension and national disunity.
I call on the Prime Minister to give this problem his personal attention because of the serious adverse repercussions such unchecked incidents could cause to family, social and national disharmony in Malaysia. Parental right and family integrity must be the basis of human rights everywhere in the world. I want to make it clear that I am not opposing the right of non-Muslim Malaysians to embrace the religion of Islam, but I do not believe that any religion teaches the break-up of family ties and the renunciation of filial relationship.
Constitutional Review Commission
Next year is the 30th anniversary of the Malaysian nation and the Constitutions he time has come for a Constitutional review to ascertain how far we have deviated from the constitutional guarantees of fundamental liberties, and to take steps to give real meaning to the fundamental liberties written into the Constitution 30 years ago.
The Government is the best body to establish such a Constitutional Review Commission, comprising eminent jurists, lawyers and public figures, but if the Government is reluctant to do so, then the Malayan Bar Council together with other public-interest organisations should band together to undertake this task. This Constitutional Review Commission should be set up immediately complete its work well before August 1987, so that its report and recommendations could be one of the high-points in the 30th Anniversary of Malaysia and the Constitution.