The triumph of civil society

There is a moment I spent with the late Raja Aziz Addruse which will forever be etched in my memory.

It was one Sunday morning at Raju’s PJ some years ago. I was telling him how jaded I felt at the state of things here in Malaysia, particularly the state of our judiciary. I told him I was ready to leave legal practice because nothing seemed to have changed. All efforts put in by everyone whom I know did not seem to yield any positive result at all.

He looked at me intently. I will always remember what he said. Because what he said epitomised the man and his indomitable spirit.

“Don’t stop knocking on the door even if nobody open the door for you. You have to keep on knocking. Who knows, one day, even if nobody opens it for you, it will crumble down.”

That was what he said.

Civil society has worked and campaigned tirelessly for the abolishment of laws which allow detention without trial, most particularly the draconian Internal Security Act. NGOs such as SUARAM and HAKAM for example took it upon themselves to make it heard that the ISA must go lock stock and barrel.

Human rights advocates such as Malik Imtiaz, Harris Ibrahim, Edmund Bon and many others have almost dedicated all their free times towards campaigning against the ISA and various other archaic laws which transgress universal and fundamental liberties.

The ISA is not the only oppressive law which was the target of these activists. The Police Act, which requires any planned gathering of 3 or more persons to obtain a prior police permit was also another example of an oppressive law which makes a mockery of Malaysia as a modern democracy. The Restricted Residence Act and the Printing Presses and Publication Act are another group of laws which deny the basic liberty of the people.

To top it up, as I pointed out recently in this article, Malaysia is still under four states of emergency which have never been officially uplifted. It is the year 2011. That we are still technically in, not one, but four, state of emergencies – declared in 1964; 1966; 1969 and 1977 – make a mockery of our push for a developed state status by 2020.

The fact that we are under states of emergency is of course insignificant if we do not consider the legal effect of the emergency. Under the Federal Constitution, almost all our liberties could be held in “suspension” when our country is under a state of emergency. It follows that all emergency laws and all regulations emanating from them, such as the archaic and totally repressive Emergency Ordinance 1969, could be enforced with impunity.

The currency of the states or emergency is therefore a frightening weapon of the States against the liberty of all of us, the people.

One of the most disconcerting aspects of the ISA is the complete misunderstanding of the law, not only among the police officers, the people in the Home Ministry but also among some of our Judges, right in the High Courts as well as the highest Court of the land, the Federal Courts.

While arguing one of the ISA cases in the Federal Court about 2 years ago, I told the Federal Court that the ISA is a “preventive” law and not a “punitive” law. What that simply means is that the ISA – by its very nature and even by the very words used in it – is to be used to “prevent” a planned act or series of acts which may be detrimental to national security. Which means the act has not happened yet and the ISA is to be used to prevent that act from happening. That is why it is called a “preventive” law.

The ISA is not a law which is to be used to punish a person or a group of persons for having done or committed any act, even though the act threatens national security. It is not “punitive” in nature. This is in line with the fact that under our system of law, only the Courts can punish. The government cannot punish the people without going to the Courts first.

It is conceded that under Article 149 of the Federal Constitution, laws providing for detention without trial is permitted to be made by the Parliament. However, a close look at Article 149 would reveal that the law providing for detention without trial which is permitted by that Article must be a law designed to “stop or prevent” any action which threatens national security.

It is clear that for such law to be constitutional under the Federal Constitutional, it must be preventive in nature and not punitive. I therefore told the Federal Court that the ISA was supposed to be preventive and not punitive.

To my complete and utter disbelief, the most senior of the 3 Judges who presided over the case disagreed with me. He said the ISA is punitive in nature. I was also later warned by another Judge in the same sitting (who had since died) to be “careful with what I submitted.”

To be frank, I think it is the Courts and the Judges who ought to be careful with what they think and decide because really, it is the liberty of the people which they are deciding upon. In some circumstances, what they decide could affect the life of the people. To tell me to be careful with what I submit in an ISA case involving the liberty of our citizens is an act of judicial cowardice!

The abuses of the ISA and the Emergency Ordinance are well documented. Recently of course, we had the case of the Parti Sosialis Malaysia’s members who were detained for more than a month under the EO for allegedly trying to wage war against the King by reintroducing communism to Malaysia! They were of course released after a huge outcry. Today I learn that all charges against them are to be withdrawn.

As for the various abuses of the ISA, one could just type the letters “ISA” in the search box of this blog and read about the litany of the abuses of the ISA. The most famous of all of course would be the detention of 106 people by Dr Mahathir under the infamous Operasi Lalang in 1987.

The Prime Minister has now announced that the ISA; the EO; the PPAP Act and the Restricted Residence Act will be repealed. The provision requiring police permit will also be repealed. The states of emergencies will be uplifted, thereby making the various emergency laws non-enforceable and void.

Two new laws will be enacted in order to make provisions for combating terrorism and the likes under the aforesaid Article 149. The Prime Minister went on to assure that these laws will take into consideration the fundamental liberties as guaranteed by the Federal Constitution. The length of detention will considerably be reduced the the present one.

It is also stressed by the PM that nobody will be detained merely on his or her political ideology.

I will take that as a victory and triumph of civil society. It is definite proof that if each and everyone is willing to stand up, be heard and counted, we can actually move mountains. The late Raja Aziz implored me to keep on knocking on the door as one day, who knows, according to him, the door might just crumble.

Well, the door has now crumbled. Wherever he is, Raja Aziz must be smiling right now. I could almost imagine him, looking at me with a smile, taking off his glasses and gently telling me in his trademark soft voice, “I told you so.”

For the moment, I will leave the scepticism to the politicians and other people with vested interests. Because really, I have no further interests in these and I will take the announcement by the PM on its face value.

Some people – in fact I know many of them – have questioned the intention of the Prime Minister in the 16th September announcement. It is said that the PM made the announcement because the general election is around the corner and he needs the support from the middle ground.

Well, to me, what was announced was for the better of this nation and her people. That is all that matters. Of course the announcement bears all the hallmark of political moves. So what if they are?

Which political parties or politicians make statement or announce a plan without political motivation? Did Mat Sabu make that Mat Indera speech just because he loves Mat Indera and not because it was seen by him that the statement would give him political mileage? Does PAS support Mat Sabu just because it thinks Mat Indera was indeed a freedom fighter? Wasn’t it populist and premised on political mileage that PKR champions greater freedom and equal rights? Doesn’t DAP’s support for PAS, despite knowing the latter’s wet dream for an Islamic state, premised on political expediency rather than it’s sudden love for Islam?

I am not a politician. I am also not someone who has the ability to foretell the future. For those who think that the 2 new laws may even be more oppressive than the ISA and the EO, I say let’s wait and see. We are not in the business of reading minds. I think we owe it to ourselves to let the Prime Minister prove his resolve. If he doesn’t deliver, then we will know what to do next.

There are of course many other repressive laws which have to be repealed. The Sedition Act and the University and University Colleges Act for example, are laws which have no place in a democracy which professes itself to be modern, mature and dynamic. The continuous threat of the Sedition Act to newspaper publishers and journalist alike for example, would render the exemption from renewal of annual publication licence meaningless. This threat will be like the sword of Damocles hanging on the head of the publishers and journalists.

However, I am willing to wait and take things one by one.

For the time being, let’s bask in this victory of ours.