Category: Abuse of Power

(Speech by Parliamentary Opposition Leader, DAP Secretary-General and MP for Petaling Jaya, Lim Kit Siang, when speaking in the Dewan Rakyat on Wednesday, April 8, 1981 on the Societies Amendment Bill 1981)

No Bill in Malaysian Parliamentary history has caused so much controversy and widespread opposition from Malaysians from all races, religious and walks of life, or from so many society and organisations, covering a whole spectrum of activities, like ABIM, the Young Christian Workers, ALIRAN, the Bar Council, the Chambers of Commerce, the professional organisations, Chinese educational bodies like Tung Chung, Chiau Chung, consumer and environmental organisations like the Consumer Association of Penang and the Environmental Protection Society, the Societies Amendment Bill 1981 now before the House.

And not without very powerful reasons. For if the Societies Amendment Bill 1981 in its present form is enacted into law, then today, April 8, 1981 is the blackest day in the country’s history, and should be remembered and marked by Malaysians every year as a reminder as to how Malaysians’ birthright to freedom and justice were trampled upon and denied by a brute parliamentary majority, and also as a reminder that the struggle to restore their birthright in human dignity, freedom and justice, requires the eternal vigilance, dedication and courage of freedom-loving Malaysians.

When I studied the Societies Amendment Bill, I was shocked by the ‘monstrosity’ of its provisions, as it strike against the very basis of a democratic society which cherishes liberty speech, assembly and association, upsets the balance of power between the Executive, the Legislature and the Judiciary and even more horrifying, further institutionalized a dictatorial government in the guise of a parliamentary democracy.

If the Barisan Nasional Government continues to profess itself as a democratic government which respects public opinion and bases its legitimacy on the views, opinions and consensus of the public, the I call on the Barisan Nasional Government to heed the genuine, sincere and responsible reactions of the numerous organisations and individuals these past few days since the publication of the Bill, and their appeal that given the seriousness of the effects of the proposed amendments, the Bill be referred to a Select Committee which will enable the public to comment upon its provisions.

I formally propose in this House that the Societies Amendment Bill should be referred to a Select Committee, and I give notice that I will be moving a motion to this effect at the proper time. Of course, of the Government intends to respect the requests of the numerous organisations and Malaysians for reference of the Bill to a Select Committee, then I will give away to the Minister concerned.

The Societies Amendment Bill should be referred to a Select Committee to enable the widest and most through public discussion and examination because the amendments in its present form, if passed, will:

1. effectively legislate away the fundamental Constitutional liberties of speech, assembly and association;
2. gravely injure the doctrine of separation of powers to provide checks and balances as it tantamounts to an usurpation of the powers of the Judiciary and even the Legislature by the Executive; and
3. bring Malaysia nearer to an institutionalized dictatorship while keeping the outer trappings of parliamentary democratic forms.

Of course, the 48 societies and associations in their joint appeal on the amendments to the Government on Monday, April 6, had in the first instance appealed to the government not to proceed with the introduction of the Bill and to drop the proposed amendments altogether.

But from the history of the Barisan Nasional Government in ramming through bills which undercut human rights and democratic freedoms despite public protest, I should be forgiven if I do not think such a course is likely – although I am prepared to be proved wrong. Nor do I think that that Government would agree to the reference of the amendments to a Select Committee, but we will cross the bridge when we come to it.

Merdeka Constitution 1957 – the High-Water Mark of Democratic Freedoms in Malaysia

The Merdeka Constitution of 1957 represented the highwater mark of democratic freedoms which since then, had repeatedly been eroded away by a combination of constitutional, legislative and executive actions.

The fundamental liberties of freedom speech, assembly and association as enshrined in Article 10 of the Malaysian Constitution have been so qualified, limited and eroded away by undemocratic laws and executive fiats that they cease to have any meaning altogether.

Thus Article 10 of the Malaysia Constitution provides that

1. every citizen has the right to freedom of speech and expression;
2. all citizens have the right t assemble peaceable and without arms;
3. all citizens have the right to form associations.

The fundamental right of freedom of speech has been curtailed and eroded by means such as the radio and television monopoly of the ruling party and the authoritarian press laws which, by requiring annual licensing, effectively stifled dissent and criticism; by the Internal Security Act which enable the Government to detain indefinitely critics of the government who have committed no offence against the laws of the country, like Sdr. Chian Heng Kai, and Sdr. Chan Kok Kit, the two DAP MPs who have been in detention for over 4 overs, Sdr. Kassim Ahmad of PSRM, and previously Syed Husin Ali of PSRM, Sdr. Anwar Ibrahim of ABIM, and even I myself; and also by the removal of the parliamentary immunities of MPs and State Assemblymen in questioning certain ‘sensitive issues’ since 1971.

Both the fundamental right of speech and assembly were curtailed by the executive fiat of the Minister of Home Affairs in 1978 to ban public rallies, on the ground of the 30th communist anniversary celebrations, but which last till today although it is inconceivable that the communists – whom the Home Affairs Minister had boasted as having kept them on the run – could have such great resources to celebrate their 30th anniversary for three years.

The present Societies Amendment Bill represents the latest, and most serious assault, on the very attenuated rights of speech, assembly and association of Malaysians, for it would give the Registrar of Societies such new and sweeping powers which will enable him to virtually control the administration and operations of all societies in the country.

Thus, the Amendment Bill provides for three types of societies, namely political party, political society and friendly society.

A political society is defined to mean any society which

1. by any of its objects or rules, regardless whether such object or rule is its principal object or rule, or constitutes merely an object or rule which is ancillary to its principal object or objects or to its principal rules, make provision for the society –
   1. to ensure in any manner any degree of control of, or to influence in any manner, the Government of Malaysia, or the Government of any state, or the administration of any local authority; or
   2. to influence in any manner the policies or activities or any of the policies or activities, or the functioning, management, or operation, of the Government of Malaysia, or of the Government of any State, or of any local authority, or of any statutory authority, or of any department or agency of any such Government or authority; or
   3. to assist in any manner any other society or societies to secure such control or exercise such influence as is referred to in subparagraph (i) and (ii); or
2. notwithstanding anything contained in its objects or rules, conducts itself or carries on activities in a manner which taken as a whole has a tendency to urge the adoption of its principles or objectives as the policy of the Government of Malaysia or the Government of any state; or
3. is a political party; or
4. supports, or expresses in any manner support or sympathy for, any political party, or is opposed to, or expresses in any manner any opposition to, any political party, or
5. supports, or expresses in any manner support or sympathy for, or is opposed to, or expresses in any manner any opposition to:-
   1. any candidate, candidates or group of candidates in any election to the Dewan Rakyat, or to the Dewan Undangan Negeri or to the local authority; or
   2. any person in the matter of any appointment or election to the Dewan Negara; or
6. supports, or expresses in any manner support or sympathy for, or is opposed to, or expresses in any manner any opposition to, any political party in any election or appointment referred to in paragraph (e).

Under a new Party IA in the Act, new Section 18A-18J gives absolute powers to the Registrar of Society to denote a society a political society.

Once a political society has been so denoted by the Registrar, it is prohibited from having any person who is not a Federal citizen as a member. A political society is also prohibited from obtaining any money, or any other property, or any pecuniary benefit or advantage from any foreign source without the permission of the Registrar.

In both instances, the Registrar has the untrammeled powers to cancel the registration of the political societies for contravention. These powers, together with that of denoting a society a political society, cannot be challenged in a court of law. Appeal goes only to the Minister whose decision thereon ‘shall be final and conclusive, and shall not be challenged, appealed against, reviewed, quashed or called in question in any court”. (Section 18H)

These are indeed terrible powers.

Firstly, the definition of a ‘political society’ is so wide and all-encompassing that it will be very difficult to find a single society which could not be caught by it.

Even voluntary organisations like the Red Cross, the Malaysian Association for the Blind, the Malaysia Historical Society, Parents-Teachers’ Associations, could be defined as ‘political societies’ when they invited Barisan and government leaders to grace their functions whether in the hope of getting government grants or favour for this clearly will be to “influence in any manner, the Government of Malaysia, or the Government of any state” under sub-section (a) (i) or (b) of the definition.

Secondly, such a wide and all-encompassing definition of ‘political society’ virtually puts all societies at the mercy of the Registrar of Societies, which will give him arbitrary powers of deciding the fate of societies through a selective process of denoting societies – in the way we have seen how the Attorney-General’s Chambers have gone about in the process of selective prosecution of those who have run afoul of the law, whether for corrupt practice, sedition or other criminal acts.

Thirdly, and most important of all, the definition and categorisation of political societies is aimed at stifling freedom of speech and association, to muzzle criticism and dissent, and to strangle the function, to muzzle criticism and dissent, and to strangle the functioning of the numerous societies and associations which had contributed much to the development of healthy and constructive actively in the cultural, educational, religious and socio-economic sphere.

As the memorandum of the 48 societies pointed out, such an amendment will lead to a serious decline in public involvement in crucial social issues, since many societies would not want to be called ‘political societies’ for fear of being confused with political parties.

The other reason is that civil servant, teachers, lecturers and other categories of public servants who have played a very major party in pressure groups like environmental and consumer societies, reform movements, religious organisations, would probably be forced to withdraw from active involvement in these so-called ‘political societies’ through some new directive of the Public Service Department. This is probable one of the major unstated objectives of the Societies Amendment Bill.

The decline in public involvement of crucial social issues will be a great loss to the Malaysian society, for Malaysia’s national and social health depends on greater public awareness and participation in the country’s affairs and not a dimunition of awareness and participation.

The Bar Council, in its memorandum protesting against the amendments, said that the Bill failed to recognised that societies were formed to influence someone and that there was nothing wrong with this.

As the Bar Council memorandum pointed out, a society for the blind or deaf might want legislation in the interest of the disabled, a nature society would want Government to make provision for parks, a consumers society might went Government to control certain foodstuffs or impose price limits and an organisation of manufacturers might want tariffs imposed on certain imports.

As the memorandum said: “All this is in the public interest. This is how democracy works and a democratic and representative Government welcomes all these approaches, comments, criticisms and proposals.

“That is one of the ways in which it is kept in touch with society’s needs. Freedom of speech and freedom of association are essential in a free society.”

The memorandum of the 48 societies was of the view that such categorization of a political society manifested so little understanding of the workings of a democratic system.

In my view, the Government Ministers and leaders fully understand the working of a democratic system, and it is precisely to strike a blow at the democratic idea and spirit that these amendments are designed, to cripple and destroy interest and pressure groups, through stringent control by the Registrar of Societies.

As the memorandum of the 48 societies cogently put it, the serious consequences from such a crippling of pressure and interest groups, whether on consumer, environmental, social reform fields, would be:

First, interest-cum-pressure group will not be able to provide non-partisan perspective on problems which political parties, given their concern for popular electoral support, may not be in a position to do.

Second, they will cease to serve as effective channels for the articulation of public feelings which in turn provide the sort of feedback that the government has always asked for.

Usurpation of the Power of the Judiciary

The Societies Amendment Bill constitutes a series shift in power relationship in the doctrine of the separation of powers in favour of the Executive at the expense of the Judiciary.

There are four separate sections involving multiple powers of the registrar which specify that the Registrar’s power could not be challenged in a Court of Law, but only appealable to the Minister.

Section 18 for instance provides that the Registrar’s powers of denoting a society ‘political’, to cancel the registration of ‘political societies’, etc., are non-justiciable.

But the most blatant and brazen usurpation of the powers of the Judiciary upsetting the doctrine of the separation of powers must be found in new Section 2A which provides the Registrar of Societies with power to cancel the registration of a society which fails in its duty “in carrying out its activities and in conducting its affairs to ensure that they are in accord with, and conductive to the fulfillment of and adherence to, the provisions of the Federal Constitution and the State Constitutions, and where any of the activities or affairs of any society is in any manner violative of or derogatory to, or militates against, or shows disregard for –

1. the system of democratic government headed by a constitutional sovereign of the Federation, and, in the State, by the respective constitutional Rulers of Yang di-Pertua- Yang di-Pertua Negeri; or
2. the position of Islam as the religion of the Federation with other religions, being practiced in peace and harmony; or
3. the use of the National Language for official purposes; or
4. the position of the Malays and of the natives of the States of Sabah and Sarawak; or
5. the legitimate interests of the other communities; or
6. any other matter

as provided under the Federal Constitution or any of the State Constitutions.”

This is a provision of far-reaching consequences, not only in shifting power from the Judiciary to the Executive, but also a back-door usurpation of the powers of the Legislature by the Executive.

Firstly, the inherent powers of the Court to determine questions of the constitution and law, whether there has been action “violative of or derogatory to or militates against or show disregard for” any of the constitutional provisions is surely a matter for the Courts to decide, based on evidence and interpretation of the Constitution, and not for the Registrar, who appears to be assuming all to himself the powers of the Privy Council! When we consider that the Registrar may have no or very limited legal experience, it is indeed horrifying to contemplate such an eventuality.

This is a serious encroachment of the powers of the Judiciary which must be resisted, of it is not to open up the floodgates of a wholesale usurpation of the powers of the Judiciary by the Executive.

In 1971, the Constitution was amended to ban four ‘sensitive’ issues from public discussion and questioning, on the pain of sedition convictions, including the removal of the parliamentary immunity of MPs and State Assemblymen for these ‘sensitive’ issues. At that time, the government announced that political parties whose officials have been repeatedly convicted of questioning the sensitive issues and therefore of the offence of sedition would have their registration cancelled, probably under the powers of Section 13 of the Principal Act, which provides the Registrar of Societies with the power to do so on the ground that the society was being used for “purposes prejudicial to or incompatible with peace, welfare, good order or morality in the Federation.”

But now, under the new Section 2A, the Registrar can cancel the registration, not only of a political society, but a political party for activities or affairs in any manner “violative of. or derogatory to, or militates against, or shows disregard for” “any other matter” in the Federal or State Constitutions, apart from five specified issues.

This means by a stroke of the pen, four entrenched ‘sensitive’ issues of the 1971 Constitution Amendment Act involving the sovereignty or rulers, citizenship Article 152 on the National Language and the use and study of other languages, and Malay special rights have been expanded, through a amendment to an ordinary bill, to cover all issues, however minute and inconsequential, in the Federal and State Constitutions.

It means that should I stand up in Parliament or outside and advocate amendments to the Federal Constitution apart from the four entrenched issues, my party, the DAP, could be deregistered, on the ground of acting in a manner “violative of or derogatory to, or militates against, or shows disregard for” “any other matter” in the Federal and State Constitutions.

Is this really the intention of the Government?

Furthermore, it cannot escape notice that the five specified issues listed in New Section 2A are somewhat different from the four entrenched ‘sensitive’ issues under the Constitution, which would appear that the Government is having different thoughts about what should be regarded in practice as ‘sensitive’ and therefore unquestionable.

For instance, one of the four entrenched ‘sensitive’ issues under the Constitution is Article 152 protecting both the official position of the National Language and the constitutional position on free use and study of the other languages.

But new Section 2A merely to “the use of the National Language for official purposes” without reference to the other languages’ position as guaranteed in Article 152. Is this because the corollary constitutional position of the other languages is beginning to have different importance in the government?

What about the ‘sensitive’ issue on citizenship, which has also been omitted from new Section 2A.

This is most disturbing provision, not only because of its explicit provisions in usurpring judicial and legislative powers, but also because of its underlying political philosophy and undertones.

The new Section 2A will give the Barisan Nasional government powers of life and death over political parties, which are not challengeable in a court or law. No country which claims to be democratic can gave such authoritarian laws.

This is why these amendments, if passes, will bring Malaysia nearer to the day when we will have an institutionalized dictatorship while keeping the outer trappings of a parliamentary democracy.

Disqualification from holding office

Another area where the Registrar has untrammeled powers unchallengable by the Courts is in new Section 9A. this provides that a person shall be disqualifies from being, and shall not become or remain, an office-bearer, adviser or employee of a registered society –

1. is he has been convicted of any offence against this Act; or
2. if he has been convicted of any offence under any other law and sentences to a fine of not less than two thousand ringgit or to imprisonment for a term of not less than one year; or
3. if there is in force against him any order of detention, restriction, supervision, restricted residence, banishment or deportation under any law relating to the security or, or public order in, the Federation of any part thereof, or to prevention of crime, preventive detention, restricted residence, banishment or immigration.

Section 9A (1) (b) will catch Datuk Harun Idris who after his release from Pudu Jail, will not be able to be an office bearer for five years from the date of his release.

Section 9A (1) (b) will catch the two DAP MPs, Sdr. Chan Kok Kit and Sdr. Chian Heng Kai, currently in detention in Kamunting, from holding DAP political office, and that of PSRM chairman, Sdr. Kassim Ahmad, also in detention.

In fact, the definition of ‘office bearer’ is defined so widely, that again, I cannot think of how a person could be a member of a political society without being an ‘office bearer’ at the same time.

Thus, new Section 9A (7) (c) defines an ‘office bearer’ as “any person who is appointed or authorised to represent, or act in behalf of, registered society or any branch of such society, in any matter…”.

This would mean that an ordinary member of a political society who gives a speech or writes a letter to the press could be construed as an ‘office bearer’. Again, for a political party, a person currently under detention like Sdr. Chian Heng Kai and Sdr Chan Kok Kit who is nominated to stand as a candidate, could be construed as an ‘office bearer’ in being ‘appointed or authorised to represent’ the party, and therefore not allowable under the amendments to the Society Act.

I ask the Minister of Home Affairs whether this is the true intention, if so, whether it is because the spectacle of two detained MPs in the 1978 general elections winning their seats, in absentia, was something which the Barisan Nasional could not stomach, especially where Sdr. Chan Kok Kit scored the biggest parliamentary majority in Malaysian history and prompted such vindictive action now?

For if this is the intention and effect of the definition of ‘office bearer’, then this will be again another back-door attempt to amend the Federal Constitution without a direct and proper amendment of the Constitution by way of a two-third Parliamentary vote.

Article 48 of the Federal Constitution enumerates the six conditions whereby a person is disqualified from being a member of either House of Parliament, namely if:

1. he is and has been found or declared to be of unsound mind;
2. he is an undischarged bankrupt; or
3. having been nominated for election to either House of Parliament or to the Legislative Assembly of a State, or having acted as election agent to a person so nominated, he has failed to lodge any return of election expenses required by law within the time and in the manner so required; or
4. he has been convicted of an offence by a court of law in the Federation (or, before Malaysia Day, in the territories comprised in the State of Sabah or in Singapore) and sentenced to imprisonment for a term of not less than one year or to a fine of not less than two thousand ringgit and has not received a free pardon; or
5. he holds an office of profit; or
6. he has voluntarily acquired citizenship of, or exercised rights of citizenship in, any country outside the Federation or has made a declaration of allegiance to any country outside the Federation.

In none of these conditions of disqualification from being a Member of Parliament is it stated that a person who is currently being detained under the Internal Security Act is also disqualified from being a Member of Parliament or standing for Parliamentary or State Assembly office.

Here it is pertinent to note the amendments to the Trade Union Ordinance 1959 which were made last year, to the definition of ‘office bearer’ of a political party. Thus the 1980 Trade Union Ordinance amendment defined ‘office-bearer’ as follows:

“ ‘Office-bearer’, when used with reference to a political party, means any person who is the president, vice president, secretary, assistant secretary, treasurer or assistant treasurer of the political party, or who holds any office or position, by whatever name called, which is analogous to any of those mentioned above, or who holds any office or position in the political party whereby he exercises management or control of the affairs of the political party.”

It can thus be seen that under the amendments to the Societies Act, the government has cast its net very wide the definition of ‘office bearer’ to include almost anyone, even though an ordinary member, who is active and not passive.

International Affiliation

The fourth area where the Registrar will have untrammelled powers is Section 13A which empowers the Registrar to prohibit a society “from having directly or indirectly, any affiliation, connection, communication or other dealing whatsoever, with any society, organisation or other body whatsoever outside the Federation, or with any authority, governmental or otherwise, in any country, territory or place outside the Federation….”

These amendments are studded with instances where very vague and imprecise terms are used, which means different things to different people which makes it capable of great abuse. In this instance, for instance, words like ‘indirectly’, ‘connection’, ‘communication’, ‘or other dealing whatsoever’ are so vague and imprecise as could amount to anything the Registrar says.

This can give rise to arbitrary power not subject to proper checks and safeguards. In fact, it would seem that it would be better that Parliament, if it is to enact the present amendments, to enact a one-paragraph amendment bill conferring full power on the Registrar to do anything he deems fit and assume and discharge any powers he finds it necessary with regard to societies in the country. For what we are doing is nothing than giving the Registrar of Societies a ‘blank cheque’ to control and regulate societies, without any access to the Courts to check his abuses of power.

Arrogance of Power

The only appeal from the Registrar’s power is the Minister of Home Affairs. It is proper to ask whether the Minister has the judicial temper and qualities to exercise such semi-judicial functions?

Yesterday, Bar Council officials came to Parliament House to present the Bar Council memorandum on the amendments to Ministers and MPs. The Minister of Home Affairs snubbed and dismissed the Bar Council memorandum insisting that the memorandum be sent to his office.

This is sheer arrogance of power, and with such attitudes, it is worrisome as to how the Minister could act with the judicial temper and qualities necessary to be the final court of appeal in the Registrar’s powers.

The untrammelled powers of the Registrar can further be seen by two separate provisions in Section 18 where the Registrar can proceed to take action against any society for any offence under the act, despite the fact that a conviction had not been secured in a prosecution under the act.

This means that the Registrar can hold the Judiciary in contempt, and that even though the Judiciary finds a person not to have committed an offence under the Societies Act, the registrar can ignore such court decisions and proceed against the society on the basis that the person had committed an offence under the Act.

Communist United Front

The Deputy Home Affairs Minister, Sanusi Junid, had said that there is nothing to fear in the amendments, and that the government’s purpose was to prevent Malaysian societies from being made used of by international Communist United Front (CUF) organisations for communist purposes.

If this is the government’s objective, then it is easily done by the government publicly enumerating the international organisations the government regard as CUF. The Home Affairs Minister had said the purpose of the amendments is ‘to call a spade a spade’. If we are to call a spade a spade, then government might as well openly admit that with the enactment of these amendments, Malaysia has forfeited any claim to be a democratic country, and that what we have is in fact an authoritarian government.