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The Malaysian Bar Supports the Attorney General in Rejecting Draconian Preventive Detention Laws

The Malaysian Bar welcomes and supports the statement made by the Attorney General that there is no need for any new preventive detention laws to replace the repealed Emergency (Public Order and Prevention of Crime) Ordinance 1969 ( “Emergency Ordinance”).

The Bar agrees with the Attorney General that it would be illogical and bizarre to have a new legislation providing for preventive detention without trial with respect to crime, when the legislation dealing with terrorism and national security, that is, the Security Offences (Special Measures) Act (“SOSMA”) 2012, does not provide for such draconian measures such as preventive detention without trial.  A person held or arrested under SOSMA may only be held for a maximum of 28 days for investigation purposes, after which he must be released or charged in a court of law.

The Bar is against any proposal for new legislation that provides for detention without trial, for continuous preventive detention or renewals of such detention without trial by Ministerial order, and the use of ouster clauses that seek to exclude the right to the due process of the law and access to the courts.

Addressing the increase in the incidence of crime requires diligence, intelligence, abilities and the dedicated resolve of the police.  It is not about giving them more draconian powers.

The Emergency Ordinance was repealed in December 2011 on the initiative of Prime Minister Dato’ Sri Mohd Najib Tun Abdul Razak, as part of his transformation and democratic reforms for Malaysia.  The Malaysian Bar urges those parties advocating for the reintroduction of preventive detention laws to refrain from seeking to reverse and undo the work of the Prime Minister in this regard.

Christopher Leong
President
Malaysian Bar

16 July 2013

Rethinking the myth of “consensus of the majority” - Part 2 : Politics and Democracy

Politics and Democracy

Democracy we say is the government of the people, by the people for the people. It is, we boast, a system that allows the people to form a government and run it by consensus. We say it is a majority rule government. Does that “majority” include you and me and the 15 year old child who does know where to get the money to go to school?

I have written extensively on the weakness and myth of the party system in a democracy on this blog and elsewhere, especially on the need for a radical reform of the political culture. Any system is workable only if the general culture is useful and positive. Where the general culture is primitive, the system becomes a tool of an elitist few. In a democracy, the party system too is controlled by the select few who determine who rise and fall as leaders. In other words, you are presented with the candidates to choose from. Most likely, these candidates rise in the party not through competency or ability but through money and patronage.

Many also vote along party lines without caring to analyse the long term consequences to their own future and the Nation. Due to various factors, including apathy, many do not really know why or whom they have voted.  Many more do not even vote thinking that it is a useless exercise without realising that by not voting, they too have made a decision which will impact the future of the nation. In such a scenario, the myth of the so-called majority government in a democracy formed by consensus of the People is clearly evident.

In a democracy, the effective competition for votes is largely confined to established parties even though there is a new trend around the world where independents are gaining greater acceptance by the voters. In the USA, for example, it is largely confined to Republican and Democratic, in UK it is Conservative and Labour while in Malaysia it is PAS and UMNO. Other parties that exist may align to any of these established parties. They get together by consensus among the top leaders of the respective parties and the general body of members generally accept the “consensus” which is then presented to the public as a “coalition consensus”. (Please note that in reality, the decisions are actually made by a few party officials)

Party consensus prevents party members from voicing and struggling for what is right if it is against party interests. In many instances, if you analyse, you will find that such party consensus has caused tremendous injustice and cruelty to mankind. You will find for example, political parties unashamedly diving citizens along racial and religious lines while at the same time they may utter that we are all “children of God”. Minorities are treated as if they do not exit on earth. Consensus allows seemingly “good” people to do evil things. When they hold power, evil values may be enacted as laws.

Elected representatives, either in Parliament or in State Assembly have the power to pass laws that affect the  ordinary citizen's life. Again, in the Parliament and the State Assembly, the laws are passed by the consensus of the majority. The issue is: have the representatives passed the laws in the interest of the Nation or for party  or vested interests? Even a bad or evil law is still law if passed. Did the voter also consent to bad laws to be passed when they voted? Is it not then the implicit responsibility of the representatives to seek the consent of their constituents? After all, they can make time to knock on every door to canvass for votes during election time. The truth of the matter is that many ordinary citizens do not know what laws are passed. The respective elected representatives also do not make it a point to explain the draft bills to their respective constituencies. Hence, the so called democratic consensus under our system is illusory and a myth. It is in fact power wielding by an elitist few under the guise of consensus.

Many ordinary citizens also fail to observe how the wealth of the Nation is distributed or they may have resigned themselves to accept it as a matter of fact beyond their control (where then is the consensus if this is so?). Is it a mere coincidence of talent that most of the wealth is in the hands of those who are either related to or aligned to those who hold political power? If indeed democracy is the government of the people, by the people for the people by consensus, did the People consent to the wealth being distributed to the leaders’ relatives and friends?

Where is the justice when we have the bulk of the wealth of the nation in the hands of the few whence we have the majority of the People struggling to have their families’ ends met? In this manner, the myth of consensus has visited cruelties on many ordinary families because the Nation’s resources have been cunningly and deceitfully taken away from them. While I bask in my RM6 million bungalow, you are struggling to pay the loan of your middle cost or low cost house! Obviously, they think their children deserve it more than yours or mine. I have merely given an example which is merely the tip of the iceberg!!!

To me, if indeed consensus is real and not a myth, based on the wealth that our country possessed, we should today have completely free education for all who want to study up to tertiary level. However, today almost every young adult is saddled with a study loan even before they begin to work! Is this not cruel? I can go on listing the things that could have been put in place if indeed consensus was real and not a myth, but I leave it to you to add the list on this blog.

The myth of consensus in politics is not understood by many because of the sophistication with which it is managed and engineered. It is also very intertwined with economic control of the Nation’s wealth. I dare say that it is an art beyond the comprehension of the average citizen. Politics is a sophisticated game of information and perception management swinging the citizens’ emotions between fear and hope. In politics, People in general are made to perceive that they are part of the consensus.

Why did you vote?

Many fail to realize that democracy today has been relegated to casting your votes at the ballot box. Once you vote, you have practiced democracy! By consensus, we seem to have agreed that once a person is elected as an MP or State Assemblyman, he has the mandate to do what he or his party pleases.

When you voted, did you give a blank cheque to the candidate to do what he or his party pleases or did you have something else on your mind? If so, what recourse do you have as a voter to oust or punish him if he breaches your mandate? These are matters which even the political scientists have not sorted out because most people seem to have accepted the system as it is. Since merdeka, I have not heard of any seminars or forums to address this issue! Hence, political thought in this country remains puerile and status quo.  With the greatest of respect, I note that even those political scientists in this country who analyse such things do so within the framework of the existing model which we inherited from our colonial masters or from those who graduate from syllabuses crafted by our colonial masters. This being the case, there will not be any radical improvements, maybe just cosmetic or short term.

When you analyse the workings of the so-called democratic system in this country you will conclude this: that every citizen has delegated the absolute right to the elected “representatives” to do as they or their party pleases during the duration of their term. You give them the absolute political power to shape your life. I say “absolute right” because our society has not put in place any user friendly counter measure for the ordinary voter to have recourse to in the event there is a breach of mandate. You just have to wait for the next election by which time; you will be successfully manipulated to repeat the error. (Yes, I do not have confidence in the majority of the voters to think or to care as yet.)

I have often said that the voters are like rats in a maze that has only three exits. The rats think they are struggling to find the exit and that they are making a choice of which exit. They do not know that the choices have already been made for them. Like the rats, voters never pause to think that maybe they want to redesign the maze or even do away with it. Unfortunately, many who think they are thinking outside the box are actually still within the box but in a different corner.

The truth of the matter is this: democracy gives you the illusion of the consensus of the People. Hence, it is a myth and not a fact.

Peace !

Rethinking the myth of “consensus of the majority” - Part 3: Religion

Remember we have Our own Shariah Laws?

Many people seem to forget that Malaysia has syariah laws in place in every state. I say “forget” because every time the relevant syariah enforcement officers act according to the Syariah enactments in the respective states, quite a number of people raise an alarm and cry “That cannot be done!” But the officers are only acting within the powers given to them by the respective syariah enactments.

Whenever the syariah courts sentence someone according to the provisions of the respective State Syariah laws, even more people protest and start saying that cannot be done. But the syariah courts are only exercising the powers given to them by the respective syariah enactments.

When Hishamuddin Hussein Onn announced that 3 women were caned, some quarters raised an alarm. When Kartika voluntarily subjected herself to the existing syariah law and the presiding Judge sentenced her according to the existing syariah law, many protested.

If it was just the ordinary citizen, then it is understandable. They do not what laws has been passed as “syariah” and when.

What is mind boggling is that the sounds of protest come from those who are in the government, even Minister. It is ironical that Ministers do know or forget that there are Syriah laws in place.

I was shocked long time ago when Tun Dr Mahathir, being Prime Minster then voiced his displeasure when three girls who took part in a beauty pageant was arrested. What? He is the Prime Minister. Why didn’t he start a reform of the syariah laws if he felt strongly about it? He didn’t, therefore it must mean that the Barisan Nasional Government is very happy with the existing syariah laws.

Let me point out some basic facts:

1. Every State has its own Syariah Laws – meaning one offence in one state may not be an offence in another state. Punishments for the same offence may be different.
2. These Syariah laws are passed by the State Assembly of each State – that means the credit for all these laws must go to the Barisan Nasional State Assemblymen because they were mostly in power since merdeka until now.
3. Each ruler of each state is the head of the religion of Islam in the respective State and they must give their assent to the laws passed.
4. Each ruler has advisers on Islam who advise them.
5. Non-Muslims are not subjected to these laws. Muslims, therefore are privileged to be subjected to two laws – the “civil law” and the “syariah laws”.
6. Generally, the Syariah laws regulate how the Muslims in this country must practice their religion. If you are a Muslim citizen, you are bound by it.
I have spoken about the impact, legality, content and importance of the Syariah laws to various MPs, including Ministers over the past 10 years. The impression that I was left with is: they do not understand the true impact of it in the long run. In fact, they do not really want to know as they have the mindset (seems to me), that it is best left to the “experts”. They “fear to touch the subject”. Politics again.

I do not know whether the time will come when concerned Muslims who take their belief seriously will also want to take active part in evaluating the syariah laws to determine if it is consistent with the teachings of the Quran and the Sunnah. After all, Muslims believe that each of us will be solely responsible for our own deeds in the hereafter.

In the meantime, Barisan Nasional MPs and State Assemblymen should not complain about the implementation of the syariah laws that they helped to pass and exist.

Peace !