Legal reform vital for nation's survival

“Please catch the politicians, disturb them, trouble them. All reforms come from the Cabinet."

- Attorney-General Tommy Thomas

QUESTION TIME | There is one and only one reason why 1MDB and up to RM42 billion in missing funds happened - the biggest kleptocracy the world has ever seen. Too much of power was concentrated in the hands of one person, the prime minister.

He could appoint or remove almost anyone he wanted at the stroke of a pen. He had wide-ranging powers to arrest and detain selectively, to prosecute or not, to detain, to classify anything at all as an official secret, to form government companies for any purpose, to appoint himself as minister for other areas, in short, to make himself a dictator if he so chose.

Over the 61 years of BN rule, 22 years of which were under Dr Mahathir Mohamad, successive events such as May 13, 1969, Umno’s break-up, the judicial crisis and Operation Lallang all in 1987/88, and various new parliamentary acts of the Najib Abdul Razak regime of 2009-2018, saw power becoming increasingly concentrated in the hands of the Umno president and prime minister.

But the public had enough of it when they overthrew the oppressive, corrupt and kleptocratic BN/Umno government in favour of Harapan. In its manifesto, agreed to by all component parties, Harapan promised extensive legal reforms.

This would ensure that the powers of the prime minister are checked and balanced by independent investigation, prosecution and trial so that the process of checks and balances is no longer controlled by the executive, but is dependent on wider accountability, especially to Parliament.

Harapan’s manifesto proudly proclaimed: "The Pakatan Harapan Government will revoke the following laws: 

1. Sedition Act 1948

2. Prevention of Crime Act 1959 (Poca)

3. Universities and University Colleges Act 1971 (UUCA)

4. Printing Presses and Publications Act 1984 (PPPA)

5. National Security Council Act 2016 (NSC Act)

6. Mandatory death by hanging in all Acts."

"The Pakatan Harapan Government will also abolish draconian provisions in the following Acts:

Penal Code 1997, especially on peaceful assembly and activities harmful to democracy;

Communications and Multimedia Act 1998;

Security Offences (Special Measures) Act 2012 (Sosma);

Peaceful Assembly Act 2012;

Prevention of Terrorism Act (Pota) 2015."

Further, the manifesto said that to ensure an effective check and balance, the Harapan government will revoke all clauses that prevent the court from reviewing decisions of the government or the laws introduced by the government.

And: “The Pakatan Harapan Government will ensure that media has the freedom to check and balance our administration. We will review all laws and regulations related to the media so that media freedom is guaranteed.”

Finally: “Key national positions such as appointments to the Human Rights Commission, Election Commission of Malaysia, the Malaysian Anti-Corruption Commission and Judicial Appointments Commission must be approved by a suitable parliamentary committee. This will reduce the ability of the Prime Minister to intervene in these important appointments.”

So why hasn’t even a single one of these changes happened? Attorney-General Tommy Thomas (above) had this to say when the question was put to him recently at a Suaram conference. "So, what should you do? You should go and meet them (cabinet), catch them and ask why are you not implementing it? There are four more years, so we don't have to give up hope.

“Please catch the politicians, disturb them, trouble them. All reforms come from the Cabinet," he said. Thomas further explained that in many cases, the Attorney-General's Chambers is only given instructions to draft bills following the Cabinet's decision.

It’s almost as if the attorney-general is impatient for the promised legal reforms to take place. He seems to have got no instruction to proceed with the changes to the law to effect the changes. Why is that? Is the government dragging its feet, and why?

Also, it’s Mahathir going back on some of the manifesto promises. The NSC Act, which Harapan promised will be revoked, will now be amended instead. The same for Poca. So far, there is no move to revoke any of the five Acts.

Meanwhile, Mahathir said that the Official Secrets Act (OSA) should remain, even though it has been abused in the past. Not only that, the report of the Council of Eminent Persons, headed by Daim Zainuddin, has been classified secret under the OSA, rubbing salt into an open wound. What is so secret about the CEP report? Is it to hide things from the public?

In November last year, Home Minister Muhyiddin Yassin (above) said two committees were still studying changes to Sosma, Pota and Poca. ”It is almost finalised and will be submitted to the Attorney-General's Chambers and then the Cabinet for approval before tabling in Parliament,” he said. But the amendments are yet to be tabled.

The Sosma is a particularly insidious piece of legislation because it can be tacked on to any other law, according to a lawyer. Thus, preventive detention from an anti-terrorism law may be applied to any offence that authorities deem to be against national security,

From these, it is obvious that all the oppressive laws from the past are still very much in the statute books, and very little effort is being made to change them. They can be used at any time by the prime minister. 

If Mahathir won’t do anything about expediting them, then it is up to his cabinet colleagues and Harapan top guns to force him to do so. It was a collective promise that Harapan made.

A very vital part of the new Malaysia is legal reform. Without that, reform is nothing and keeps the door wide open for future abuses. We have to make it unambiguously clear that even the very top is not exempted from the law. 

And that can only be done by preventing crony appointments to key positions and to remove provisions in the law which concentrate power in the hands of the prime minister. Only then can we ensure that there is no major malfeasance by the top in future.

As Mahathir is fond of saying, the rule of law applies to everyone. Right now, that is not true in Malaysia.

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P GUNASEGARAM is the author of the first book on 1MDB - 1MDB: The Scandal that Brought Down a Government. He hopes there will no occasion for another government-toppling scandal. E-mail: t.p.guna@gmail.com. - Mkini