PAPER by Parliamentary Opposition Leader, DAP Secretary-General and MP for Kota Melaka, Lim Kit Siang, at the Fourth DAP Human Rights Convention held at Hotel Excelsior, Ipoh on Sunday, 15th June 1986 on HUMAN RIGHTS, DEMOCRACY AND THE MALAYSIAN CONSTITUTION in the session on CONSTITUTION DEVELOPMENTS in Malaysia – an Overview
Call for a Constitution Review Commission of Eminent Malaysians to mark the 30th Anniversary of the Malaysian Constitution to conduct wide-ranging constitutional review on parliamentary democracy, human rights, federalism, separation of powers, and checks and balances
Next year will be the 30th anniversary of the Malaysian Constitution, which become a very different document from that of the Merdeka Constitution in 1957, having been amended in over a thousand places.
The history of the constitutional amendments in Malaysia is also the history of the progressive emasculation of the democratic rights and freedoms of Malaysians, and continuous assault on federalism, separation of powers, and checks and balances with the unrelenting usurpation by the Executive, and the Prime Minister, of the powers of the Legislature and the Judiciary.
The Reid Constitutional Commission Report 1957, in spelling out the “fundamental individual rights which are generally regarded as essential conditions for a free and democratic way of life”, envisaged a higher constitutional guarantee of “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 supremacy of law, the supremacy of Parliament and even the supremacy of the Constitution have proved to be mere fictions and myths. There is only the supremacy of the Executive, or to be more exact, the supremacy of the Prime Minister, who concentrates in his hands powers and functions which rightfully belong to the Legislature and the Judiciary.
The biggest casualties in the last 29 years of constitutional amendments have therefore been parliamentary democracy itself, the separation of powers, the check and balances, human rights and the concept of federalism.
Part II of the Constitution, from Article 5 to 13, enumerates the ‘fundamental rights’ of Malaysians, which are immediately negated by restrictions and qualifications by ordinary legislation in Parliament. This means that although it would require a two-thirds majority to remove the fundamental liberties from the Constitution, it only needs a simple majority to empty the Articles on fundamental liberties of all meaning and content, by enacting ordinary legislation to restrict or emasculate them.
It serves the political purpose of the government of the day to have a noble Constitution, proclaiming and heralding fundamental liberties which are often disregarded.
The recent release of the 36 Kampong Memali detainees on the eve of the habeas corpus application by 27 of them before Mr. Justice Mustapha Hussein in Alor Star High Court highlights the irresponsible and arbitrary manner in which Article 5 on the fundamental right of personal liberty is frequently violated.
The police authorities had at first announced its intention to charge all those detained in connection with the Kampong Memali Incident for various criminal offences; but changed its mind later by detaining them under the Internal Security Act where no prima facie case of any offence need be established.
The Barisan Nasional Government was guilty of the ‘arbitrary’ arrest and detention of Kampong Memali detainess.
The case illustrates the need for Article 5 to conform with the Universal Declaration of Human Rights and the UN Covenant on Political and Civil Rights, which expressly prohibit ‘arbitrary arrest or detention’, and not mere prohibition of deprivation of personal liberty ‘save in accordance with law’.
This is because under Article 5 of the Malaysian Constitution, all despotic and oppressive acts of the government would be unassailable so long as they were in ‘accordance with law’. Arbitrary deprivation of liberty should prohibit not only ‘illegal’ but also ‘unjust’ arrests and detentions.
FREEDOM OF EXPRESSION
The parlous state of freedom of expression in Article 10 must be particularly vivid to participants of the Fourth DAP Human Rights Convention, for two days ago, posters and banners about this convention was arbitrarily removed by the Ipoh Municipality.
The Malaysian Government is an ardent supporter in world forums in the campaign for a New Information and Communication Order based on the Report of the UNESCO COMMISSION headed by Sean MacBride entitled ‘Many Voices, One World’ which studied the ‘totality of communications problems in modern societies’. But the Malaysian Government forgot that the MacBride Commission dealt not only with the problem of the unequal dominance of news and information between countries, especially the industralised countries and the Third World, but also within countries themselves.
This is what the Mac Bride Commission said about freedom of Expression:
“The presence or absence of freedom of expression is one of the more reliable indications of freedom in all its aspects in any nation. Today, in many countries throughout the world, freedom is still trampled upon and violated by bureaucratic and commercial censorship, by the intimidation and punishment of its devotees, and by the enforcement of uniformity. The fact that there is said to be freedom of expression in a country does not guarantee its existence in practice. The simultaneous existence of other freedoms (freedom of association, freedom to assemble and to demonstrate for redress of grievances, freedom to join trade unions) are all essential components of man’s right to communicate. Any obstacle to these freedoms results in suppression of freedom of expression.”
It is most ironic that the 2M Government (now reduced to a 1M Government) should have posed the greatest threat to freedom of expression and information although it started off with promise of an open, democratic and liberal credentials.
But during these four years, an entirely new Printing Presses and Publications Act had been enacted, while the Official Secrets Act had been amended to turn it from a ‘Catch-All’ and ‘Cover-All’ into the only legislation of its kind in the world where it has become a ‘Super Catch-All’ and ‘Super-Cover-All’.
Editors have been sacked for allowing headlines, editorials or reports at variance with the wishes of the ‘political boss’ to see print. Our paper-writer, K. Das, has told me that the Special Branch are grilling distributors and booksellers of his book, The Musa Dilemma.
Freedom of Information, the right to seek, receive and impart information – which has also been described as the touchstone of all freedoms, is openly denied with the latest proposal to amend the Official Secrets Act to make it a mandatory minimum one-year jail sentence for any offence under the Act, so as to throw a blanket over all government information and scandals, to the extent that the OSA be more appropriately stands for Official Scandals Act.
The mass media censorship, the cult of government secrecy, the suppression of free expression as in the ban of public rallies and free assembly, have now reached new heights.
But these are nibbling away at the fundamental rights when compared to the batterings which take place when Emergency powers are invoked, for when States of Emergency are proclaimed under Article 150, fundamental rights enshrined in the Constitution could all be derogated away, and State Constitution suspended or amended.
This is why the Government is so reluctant to revoke Proclamations of Emergency and there are now four Proclamations of Emergency concurrently in force at present going way back to Indonesia Confrontation in 1964.
The Amendments to Article 150 are the best example of the concentration of power and authoritarian trend of Executive usurpation of powers of both the Legislature and the Judiciary.
Under the original Merdeka Constitution, Parliament was vested with the power and responsibility to provide a direct check on the exercise of emergency powers by the Executive. Thus, Article 150 in the original Merdeka Constitution in 1957 states:
“A Proclamation of Emergency and of any ordinance promulgated under Clause (2) shall be laid before Houses of Parliament, and if not sooner revoked, shall cease to be in force
(a) A Proclamation on the expiration of a period of two months beginning with the date on which it was issued;
(b) An Ordinance at the expiration of a period of fifteen days beginning with the date on which both Houses are first sitting, unless, before the expiration of that period, it has been approved by a resolution of each House of Parliament.”
But this two-month life-span for Proclamations of Emergency unless renewed by Parliament, which requires Parliament to address its mind to the continued justification of the Proclamation and Ordinance, was amended in 1960 to allow Proclamations of Emergency to last for eternity. Thus was the Legislature powers usurped by the Executive.
The Judiciary’s powers were usurped in January 1979 when Article 150 was amended to make Proclamations of Emergency unchallengeable in a Court of Law, even though a Proclamation may have been issued mala fide, or the conditions for which a Proclamation of Emergency was promulated to deal with had long ceased to exist.
In May 1981, Article 150 was further amended to empower the Proclamation of Emergency before the occurrence of any event which threatens the security, or the economic life, or public order of the country, if the Government is satisfied that there is imminent danger of the occurrence of such event.
This usurpation of powers and safeguards by both the Legislature and the Judiciary against the abuse of emergency powers by the Executive is now complete.
This development has not only dealt a severe blow to the doctrine of separation of powers, and the checks and balances in a democratic society, it also threatens the very principle of Federalism and Federal-State relations.
CONSTITUTIONAL REVIEW COMMITTEE
I fell strongly that the time has come for a Constitutional Commission to be established to review the workings of the Malaysian Constitution with particular reference to whether it has helped or hindered parliamentary democracy, human rights, federalism, separation of powers, ad checks and balances.
It would be most ideal if the Government can fully participate in such a Constitutional Review Commission or better still, set it up, for it should equally be the concern of the Government as well as all strata of Malaysian society to review and make our Constitution further, rather than frustrate, parliamentary democracy, human rights, federalism, separation of powers and checks and balances.
I do not believe that the Government of Parliament would set up such a Constitutional Commission, and I therefore suggest that a Constitutional Review Commission of Eminent Malaysians be established to mark the 30th Anniversary of the Malaysian Constitution and conduct wide-ranging constitutional review in areas of parliamentary democracy, human rights, federalism, separation of power and checks and balances.
I would suggest that the Constitutional Review Committee be set up now so that it could study, review and recommend to the nation on the eve of the 30th Anniversary of Merdeka and the Malaysian Constitution, to give the occasion special purpose and meaning.
It may be a good idea that a Convention be held to establish such a Constitutional Review Committee, and draft its term of reference, and I would suggest that the Informal Movement for Freedom and Justice, which comprises the Bar Council, public interest groups, political parties, trade unions, may be a suitable convenor for such a Convention, with invitation to the component parties in the ruling coalition.
There are many Eminent Malaysians who would be able to serve on such a Constitutional Review Committee with distinction, like Tun Hussein Onn, Tun Suffian, Tan Sri Ahmad Nordin, Tan Sri Dr. Tan Chee Khoon, Dr. Chandra Muzaffar, Raja Aziz Addruse, to mention a few. I do not think every member of the Committee should be a lawyer, so as to provide wider and larger perspective for such a Constitutional Review.
Interested organisations and Malaysians should be invited to present memorandum and public representations so that the Constitutional Review become an nation-wide soul searching of our national purpose and national consensus.
Among the various aspects which such a Constitutional Review Commission should inquire are some of the following:
THE ROLE OF THE ATTORNEY GENERAL
The former Attorney-General, Tan Sri Datuk Abdul Kadir bin Yusof, writing in the Malayan Law Journal in1977, on ‘The Office of Attorney-General, Malaysia’, said:
“The functions of the Attorney General, by their very nature raise certain expectations in the minds of the public, and in the growing impersonal structure of the bureaucratic set-up, there is a tendency to regard the Attorney-General as a sort of Ombudsman who sees that the Government abides by the laws which its legislative organs enact and administers these laws with humanity and impartiality. As the primary legal adviser of the Government, as the authority responsible for the functioning of the drafting and law revision divisions of his Chambers, as the Public Prosecutor, and as the Counsel for the Government in civil litigation by and against the Government, the Attorney-General could certainly be expected to make every effort to uphold the law and serve the interests of the public.”
The actions and record of the Attorney-General, Tan Sri Abu Talib Othman, however, raises the question whether he sees it as part of his duty to ‘see that the Government abides by the laws’ and to ‘uphold the law and serve the interests of the public’ as distinct from the ruling partied.
I refer in particular to Tan Sri Abu Tallib’s following actions:
1. His refusal in 1984 to institute legal proceedings for the Courts to decide whether Datuk Harris Salleh, then Sabah Chief Minister, had violated Article 6(5) of the Sabah State Constitution in remainding as a director of three companies during his tenure as Chief Minister;
2. His refusal to take firm action to uphold the law and prosecute the BMF Scandal culprits although the Prevention of Corruption Act provided for extra-territorial jurisdiction for Malaysian courts for corruption offences committed abroad;
3. His ready support to the Government to suppress the Ahmad Nordin BMF Inquiry Committee Final Report on the ground that the Government could be sued for the publication of the Report;
4. His prosecution of Bar Council Chairman, Param Cumaraswamy for sedition in connection with the appeal for clemency for Sim Kie Chon.
5. His failure so far to prosecute anyone for the 12 days of anarchy and lawlessness in Sabah in March when there was clear conspiracy by certain political leaders to ‘overawe… the Government of any State’, which is treason under the Penal Code; and those responsible for the bomb explosions, arson and rioting in Sabah;
6. His attempt to disqualify Mr. Justice Mustapha Hussein from hearing the habeas corpus application of 27 Kampong Memali detainees;
7. His recent television interview that the Government has no intention to introduce any further amendments to the Official Secrets Act Bill to impose a minimum mandatory one-year jail sentence for any offender, on the ground that the Act ‘had been fully considered’. During interview, he referred to an OSA case where a fine of $5,000 was reduced on appeal to $1,500, which was my case in connection with the SPICA-M Fast Strike Craft. This example by the Attorney-General shows his vindictiveness as not being able to disqualify me as a Member of Parliament if I were find $2,000, and raised the question of his fitness to hold the office of Attorney-General.
8. His role in the various Constitutional Amendment and the prolongation of the four Proclamation of Emergency resulting in the damage to parliamentary democracy, the doctrine of separation of powers, the principle of Federalism and the ursurpation of the powers, and functions of the Legislature and Judiciary by the Executive.
THE ROLE OF THE ELECTION COMMISSION
The Constitution intends to have an independent and impartial Elections Commission which conducts democratic and fair elections “without fear or favour” of any party, including government parties. This is why Article 114(2) provides that “In appointing members of the Election Commission the Yang di Pertuan Agong shall have regard to the importance of securing an Election Commission which enjoys public confidence”.
Unfortunately, the Elections Commission has shown that it is subservient to the dictates of the government, and has been reduced to nothing more than an UP1J0 Elections Bureau.
Long before Ghaffar Baba returned to the Cabinet as Deputy Prime Minister, and was merely Barisan Nasional Secretary-General, he had announced that the coming general elections would have a very short campaign period, the nomination forms would be simplified and that election deposits would be increased.
Clearly, UMNO leaders have ceased even to pretend that the Elections Commission is ‘independent, impartial’ or ‘fair, democratic and just’ or needs ‘to enjoy public confidence’. Ghaffar has been proved right, for in accordance with UMNO directive, election campaign period had been shortened to a minimum of seven days between Nomination and Polling while candidates deposits upped from $1,000 to 45,000 for Parliament and S500 to $3,000 for State Assembly.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS
International human rights law recognizes a distinction between political and civil rights, on the one hand, and economic, social and cultural rights, on the other. There is thus an International Covenant on Political and Civil Rights and another International Covenant on Economic, Social and Cultural Rights.
As Article 22 of the Universal Declaration of Human Rights states everyone is entitled to the basic economic, social and cultural rights, which are ‘indispensable for his dignity and the free development of his personality’.
Malaysians should consider whether we should spell out the economic, social and cultural rights of every citizen in our Constitution.