Two-thirds Majority

By Hakim Joe

When Malaysians gave total control to the Alliance Party by voting in 51 parliamentarians out of a total of 52 contested seats (98%) in 1955, and 74 parliamentarians out of a total of 104 contested seats (71%) in 1959, they are in reality placing their immediate future and the future of their kids and grandchildren in the hands of the politicians.

The Malay-dominated ruling elite then proceeded to use this unprecedented majority in Parliament to elaborately construct an electoral system that practically guaranteed that it could never be removed from power, ever. Additionally, they instituted a wide range of political controls and passed an assortment of laws that restricted interference, criticism and opposition from any single individual or group within Malaysia.

So when BN leaders and former leaders tell you that Malaysia is overtaken by minorities’ interests, they are telling a blatant lie. No Non-Bumiputera can ever aspire to become the Prime Minister of Malaysia no matter how suitable or appropriate he or she is for the job or even if 100 percent of Malaysian voters voted him in. The Malaysian Constitution forbids it and that is what I meant by political controls.

A lot of Malaysians are now ecstatic when the news that the Government is planning to repeal the Internal Security Act was announced by the PM on Malaysia Day. The trouble is that no time frame was ever declared and that the foundations to reintroduce a similar law as a replacement for the ISA are still practically in place. It is called the “Emergency Powers” and is enshrined in the Malaysian Constitution.

Clause 1 of the Malaysian Constitution states that the Yang di-Pertuan Agong may issue a proclamation of emergency if he is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened. Clause 2 states that this emergency proclamation can be declared before the actual occurrence of the event if the Yang di-Pertuan Agong is satisfied that there is imminent danger of the occurrence of such event(s). Clause 8 states that the satisfaction of the Yang di-Pertuan Agong shall be final and conclusive and cannot be challenged or called in question in any court on any ground.

It is understood that in such cases, the Yang di-Pertuan Agong will be acting on the advise of the Malaysian PM and there are no automatic withdrawing or time-lapse of such a proclamation once it is declared as exhibited by the first emergency proclamation after independence in 1964 after Indonesia launched its policy of confrontation against Malaysia and the 1969 Emergency Proclamation after the race riots.

Once an emergency proclamation has been made, the Yang di-Pertuan Agong has the ultimate “power to promulgate ordinances that possess the same force and effect as an Act of Parliament” and “may be exercised in relation to any matter with respect to which Parliament has powers to make laws, regardless of the legislative or other procedures required to be followed”.

Additionally, Parliament has an unrestricted power to “make laws with respect to any matter, if it appears to Parliament that the law is required by reason of the emergency”. It is also stated that neither ordinances nor acts passed under the emergency powers can be found “invalid on the grounds of inconsistency with any provision of the Constitution” except for provisions relating to religion, citizenship, language, Islamic Law, Malay customs and native law and custom in East Malaysia.

Malaysia is legally still in a State of Emergency and based on the grounds that it cannot be challenged in a Court of Law, it is not necessary for the Government to show cause that a grave emergency has in fact existed or still exist within the society. There is no burden of proof necessary. Failure to lift an emergency proclamation has in fact left the government with far-reaching and legally unchallengeable powers that can be brought into force at any juncture of time without the need of Parliamentary approval or the need to declare a new emergency.

Emergency proclamations can be issued nationwide or to a particular state only. In 1966, emergency was proclaimed in Sarawak after the East Malaysian state has fallen to the opposition party SNAP. In 1977 this happened to Kelantan after PAS won the state elections. In both incidents, the central government took over control of the state and deposed the legally elected government. PAS won back the state in the subsequent elections but Sarawak was never lost to the opposition again.

Legally, BN can advise the King to declare separate statewide emergencies in Penang, Selangor, Kedah and Kelantan today and take over the state government without fearing any legal recourse. They are not doing it because such an action will have its setbacks but it does not mean that they cannot do it.

Lifting of Emergencies are no euphoric events either as shown in the lifting of the 1948 Emergency in 1960. The Alliance Party (71% Majority) used powers derived from Article 149 of the Constitution to introduce the ISA with the reasoning being that such a law is urgently required to combat Communism in the country after the Emergency is lifted. The ISA Bill sailed through both the Dewan Rakyat and Dewan Negara smoothly without any noticeable opposition. If an individual is detained under the ISA, it means indefinite detention without charge or trial.

In 1987, Malay Christian Jamaluddin Osman was detained under the ISA for his allegedly proselytizing activities after the government claimed that he was festering animosity between the Muslim society and the Christians. In the Supreme Court of Malaysia, Chief Justice of Malaya, Tan Sri Hashim Yeop Sani ordered the release of Jamaluddin Osman concluding that, “we do not think that mere participation in meetings and seminars can make a person a threat to the security of the country. As alleged to the conversion of the six Malays, even if it was true, it cannot be regarded as a threat to the security of the country”.

This was a no-no for the government and in 1989 amendments were made to the ISA that virtually eliminated the possibility of court challenges to indefinite detention under the ISA. This gave the Government carte blanche to detain (and not arrest) any individual without charge or trial for an indefinite period. The government was also no longer compelled to attempt to establish a credible link between the detainee and any actions deemed to be a grave threat to the security of the country. One could be eating nasi lemak alone at Steven’s Corner in Pandan Indah (if you could get someone to take your orders in the first place) and be eating nasi lemak in Kamunting the next day and no Court of Law in Malaysia could get you out from there.

Subsequently a High Court Judge declared that, “it is not competent for the court to inquire into the sufficiency, relevance or otherwise of the allegations of facts (if any). The (Home) Minister’s finding is a subjective satisfaction and is not subjected to judicial review”.

Another few laws introduced to “protect” the government are the Sedition Act and the Official Secrets Act. While it can be argued that these laws were deemed necessary to preserve public order, in practice their implementation restricted fair play on the political background as these laws were used to restrict the opposition’s scope for public criticisms of governmental actions.

In 1948 when the Sedition Act was first introduced into law, the Colonial Government used the act to direct against offences such as inciting disaffection against the government, inciting contempt for the administration of justice and raising discontent amongst the people. In 1969, the Sedition Act was amended to cover matters and issues with a tendency to promote ill feeling and hostility between different races or classes of the population of Malaysia. Also introduced into the Sedition Act was the banning of “any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution (dealing with citizenship) or Article 152 (establishes Malay as the National Language), 153 (safeguard of the special position of the Bumiputeras) and 181 (sovereignty of the Malay Rulers) of the Federal Constitution”.

In 1971, the Federal Constitution was re-amended to extend the application of the Sedition Act to Parliament itself, thus removing parliamentary privileges from discussion of these topics and other issues considered sensitive. All amendments to the Sedition Act required a two-thirds majority for it to be passed in Parliament and even when the Alliance Party did not possess quite the necessary numbers, talks were already in an advanced stage with Gerakan to join the Alliance Party. The PGRM sell out gave the Government sufficient votes.

Both the Sedition Act and the Official Secrets Act hold extensively far-reaching scopes and legally outlaw an individual to inform another individual of any information that is in the possession of the government regardless of how trivial, insignificant or widely known it already is or is in publication worldwide outside the boundaries of Malaysia. Whether that information is correct, true or otherwise is not in question here and any violation of these laws are punished by mandatory jail terms from one to fourteen years under the penal code if one is found guilty by a Court of Law in Malaysia.

De-politicizing potential opposition is yet another political control instrument in place here. In many Third World nations (and yes, Malaysia is considered as one), opposition to existing governments comes from workers, students and peasants. Malaysia therefore introduced precautionary measures to inhibit its growth.

In 1959, the Trade Unions Ordinance was introduced to prevent office bearers or employees of political parties from holding office in trade unions. The 1969 Essential (Trade Unions) Regulations made it illegal for a trade union to use funds for political objectives. Additionally, trade unions can only be registered into “particular” trades (in the opinion of the Registrar) and therefore it was unlawful to form large general unions covering workers from different trades and fields. The MTUC (Malaysian Trade Union Congress) is therefore strictly not a trade union but a society (registered under the Societies Act).

In 1975, Dr. Mahathir introduced the Universities and University Colleges Act whereby students were banned from joining or allaying themselves with any political party, trade union or any other organization, body or group without the written permission of the Vice-Chancellor. Furthermore, students were prohibited from saying or doing anything that could be interpreted as supporting or sympathizing with, or opposing any political party or trade union. This applies to the academic staff as well. Either one was a politician or a student (or teacher) and not both.

In Malaysia, peasants or rural inhabitants are politically quiescent. There are in fact no independent peasant organizations but the government already has organizations in place to control, manipulate and indoctrinate the farmers and planters. Both the secretary-generals of FELDA and FELCRA are civil servants appointed by the government.

Additionally, the educated middle-class is controlled by the Societies Act. Members of such groups and societies are governed by laws in accordance to the Act and any infringement or purported infringements are penalized by immediate deregistration. In 1981, amendments were made to the law to make clear distinction of a political group or society from a non-political group or society, and to make any decision by the Registrar to deregister a group or society final and non-challengeable in court. In 1983, the category of political society was dropped after then ABIM chairman (who opposed the law) was recruited into Umno (1982). The ABIM (Angkatan Belia Islam Malaysia) chairman in 1981 was Anwar Ibrahim.

All such repressive legislations could never be legally implemented unless the government possesses a two-thirds majority in Parliament. It is therefore of utmost importance that Malaysians continue to vote in opposition politicians as a precautionary safeguard against total parliamentary control by any one single political party.