Malaysia – Defending the Constitution

Malaysia is on the brink of fundamental change. It should have been apparent to all following the unprecedented election results in March 2008. The Federal Opposition has since faced numerous challenges, and it has taken a beating on many issues. But the turnout at the recent Bersih rally on 9 July, showed that there is still unmet demand for change. And the Government has recognised this.

The Prime Minister announced that the ruling coalition will abolish the Internal Security Act. This has been met with cynicism by many – understandably. In the months since the announcement, there has been much backtracking. But the announcement itself was remarkable. A Prime Minister from the United Malays National Organisation (UMNO), the party which has held power since Independence, announced the repeal of the ISA. And this was a direct result of public pressure – a public that overwhelmingly supported the law and its use less than a decade ago.

Prime Minister Najib Tun Razak had also announced that he will be ending the numerous states of emergency in force in Malaysia for over three decades. This will automatically signal the end of the other major piece of legislation that allows for detention without trial, the Emergency Ordinance. There should have been mass jubilation on the part of those who participated in the Bersih rallies, those who have been pushing for the repeal of this legislation for decades, but there wasn’t.

The government acted just as the cynics predicted. The repeal of the ISA, the ending of the emergencies, are now being supplemented by a raft of legislation that will ironically strip Malaysians further of their fundamental liberties enshrined in the Constitution. And the Government has also promised that it will be drafting and putting before Parliament new ‘anti-terror’ legislation that will bring back detention without trial.

The Kafkaesque titled Peaceful Assembly Bill is a bill that bans street protests – marching from one place to another in support of (or objecting to) a cause. So the Terry Fox run is out. It also bans non-citizens and children from taking part in any assemblies. Children are allowed to take part in four types of assembly – religious, funerals, assemblies related to custom or those approved by the Minister. Nature walks, trips to a science museum, even a school assembly must all fall under one of these categories, or the organisers, children and parents face hefty fines or other legal action.

Organisers of an assembly must be over the age of 21. I would have been in big trouble – as a child I organised activities to raise money for various charities. Some of these included assemblies of various kinds. Non-citizens are not allowed to organise or participate in assemblies – and given that around twenty five percent of Malaysian workforce is estimated to comprise migrant workers, this has huge implications for labour relations.

The Third Schedule of the Bill outlines the type of activities that do not require notification. It includes wedding parties, but not birthday parties, anniversary celebrations or other private functions. It includes family days held by employers for their employees, but not trainings, talks or lectures.

The Bill outlines the role of the police, which says nothing about respecting the rights of citizens to gather – it says the policy may arrest, may detain, and must be listened to.

The problems with this Bill are manifold. The draconian clauses in the bill is aggravated further because implementation will be, of necessity, arbitrary in nature, like so many of Malaysia’s other repressive laws. Furthermore, there is no way that the police will be able to take action against all the assemblies that are deemed illegal under this Bill. Every time you have more than five friends round, each time you participate in any non-religious activity, you would be breaking the law.

Then there’s the Anti-Apostasy Bill. The legal dynamics of this are examined in an article by Art Harun. It blatantly infringes the right to freedom of religion and contravenes learned views within the Islamic community.

Malaysia is a constitutional democracy. While the first part of the Constitution defines what Malaysia is, the second part defines the fundamental liberties of Malaysians and those in Malaysian borders. This was not some whim of the drafters. Fundamental liberties were seen as intrinsic both to what Malaysia is and to who Malaysians are. A people who are entitled by birth to certain rights and liberties, and these are inalienable, and recognised in law, recognised as the foundation of the law, the bedrock from which all other laws flow.

If Malaysia is to put an end to the charade of human rights reform, becoming the global leader of moderates, becoming a developed nation; it should begin a journey of genuine respect for its population, built upon principles of democracy and equality; it is from these Articles of the Constitution that these reforms needs to flow.

Sonia Randhawa is a Director at the Centre for Independent Journalism, Malaysia.