‘Activity detrimental to parliamentary democracy’: a new crime

When Datuk Ambiga voiced Hakam’s proposal that the PM go on leave pending the outcome of investigations into the disclosure of billions in his personal bank account, and in the interim, parliamentarians convene a special session to form a national government, Hakam was advancing the role of Parliament, says professor of law, Gurdial Singh Nijar. – The Malaysian Insider filepic, August 6, 2015.A new threat looms large over Malaysians. It is the recently-minted 2012 amendment to the Penal Code – a new section 124B. It says that anyone carrying out, by any means, directly or indirectly, any “activity detrimental to parliamentary democracy” can be jailed up to 20 years if convicted.

Several students and activists have been arrested and investigatedfor offences under this provision. So was an investigation initiated against Ambiga Sreenavasan, the President of the National HumanRights Organisation – Hakam – founded by our first two prime ministers?

Now MACC officials are also reported to have been hauled up for investigation under this section.

What kind of offence is this “activity detrimental to parliamentary democracy”?

The Penal Code defines it as “an activity carried out by a person or a group of persons designed to overthrow or undermine parliamentary democracy by violent or unconstitutional means.”

But this still does not clarify the kind of acts that ‘undermine parliamentary democracy by unconstitutional means’.

Ambiga had earlier voiced Hakam’s proposal that the PM go on leave pending the outcome of three separate official investigations into the disclosure of billions in his personal bank account.

In the interim, Hakam suggested that parliamentarians convene a special session to form a national government.

One may not agree with theproposal, but it can hardly be considered “unconstitutional”. Indeed, on any view, Hakam was advancing the role of Parliament.

The danger of phrases like these in criminal law is that they leave the discretion to charge very much in the hands of the police. And can be abused for political and extraneous ends – as many are beginning to speculate happened in these recent cases.

Author Nicol categorised an identical expression in the UK Security Service Act 1989, as “vague in the extreme.” The UK law is interpreted narrowly – exclusively to combat terrorists who plan unlawful violence.

Lord Slynn speaking for the House ofLords – the highest court in England – confined the crime to offences “against national security” involving engagement “in activitiesdirected at the overthrow by external or internal force or other illegal means of the government of the country concerned …” in the case of Secretary of State for Home Department v Rehman [2003] 1 A.C. 153.

Indeed when the amendment was debated in Parliament, the then de facto Law Minister Datuk Seri Nazri Abdul Aziz assuaged opposition fears, stating that the provision was intended to deal with violent acts, citing the Al Ma’unah episode where a group of people raided an armoury to equip themselves with arms to overthrow the government. ‘Unconstitutional’ was when it (clearly) went against the Constitution such as setting yourself up as a PM, he explained.

For this rather obvious reason, I can foresee the likelihood of the UK courts rejecting any application to extradite the WSJ journalist for an offence under this section.

But now the IGP uses this section against NGOs and even against youth and students who, no doubt infused with indefatigableidealism, wish to demonstrate their disapproval of things going rotten in the body politic, as they perceive them. And right up to yesterday, against MACC officers tasked to probe alleged improprieties.

Is this not undermining MACC’s role in restoring confidence in a functioning democracy? 

How different in some other jurisdictions, I ponder. The speaker of the Australian Parliament was forced to resign a few days ago because of public anger over her travel expenses (albeit within her entitlement) of a relatively paltry sum of taxpayers’ money, including A$5,000 on an 80km helicopter ride for a political fundraiser. She relinquished her position ‘out of love and respect for the institution of Parliament/.’

Will others similarly circumstanced do likewise in the public interest? In the words of the social scientist, Leo Huberman – will they give up the sugar?

- TMI