Merde-ka(h)?

By Hakim Joe

What are civil liberties? The Wikipedia explains that civil liberties are freedoms that protect an individual from the government of the nation in which they reside. Civil liberties set limits for government so that it cannot abuse its power and interfere unduly with the lives of its citizens.  

Basically it indicates that there are certain rights that every citizen possesses in which their government is specifically prohibited to interfere with. These are the fundamental rights which are entrenched in the Constitution, and that cannot ever be jeopardised. Rights like the freedom of speech, assembly and association, freedom of religion, freedom to be alive, freedom from tyranny, freedom of privacy, freedom from discrimination, freedom of movement and freedom to pursue a life of happiness. It also includes civil, political, social, economic and human rights. 

Having civil liberties mean a country where the rule of law prevails and where justice is held in high esteem. It also means a nation where its internal security apparatus is beyond political manipulation and its legislations are just and impartial, where the government governs with a fair hand and the privilege to righteousness is never impeded. 

When the ISA and a whole lot of repressive laws were implemented and arbitrarily used, it takes away a part of our fundamental rights. When someone cannot change their religion, it takes away yet another part of rights. When peaceful candle lit vigils are broken up by armed security forces in full riot gear, yet another part of our rights are forcibly taken away from us. When the jurist decide to interpret the Constitution in a manner that defies morality, when laws are tabled and passed to cater for one single case against the opposition leader, when an interviewee dies under interrogation from a government agency, when investigations into custodial deaths in lockups produces results which always imply that the prisoner died from self-inflicted wounds, all these take away bit by bit of our fundamental rights until there are no longer any liberties afforded a citizen lest what scrap is offered by the government. 

Malaysia is by no means the only country in the world that possesses such a law as the ISA. Singapore, India, Burma, Vietnam, Zimbabwe, Sri Lanka, Indonesia, Congo, Algeria, North Korea, Fiji, Laos, Nepal, Ghana, Saudi Arabia, Iran, Bangladesh, Thailand, Egypt, Jordan, Philippines, Sudan, Cambodia, Iraq and Nigeria are but a few of the numerous nations whose government supports indefinite detention without trial and where a repressive law takes over criminal jurisprudence.  

The Universal Declaration of Human Rights (UDHR) sponsored by the United Nations was never signed by Malaysia, contrary to what a lot of Malaysians think. Being a non-signatory, Malaysia is therefore not required to adhere to its resolutions. The UDHR is a non-binding agreement anyway and even if it is binding, governments all over the world would have found sufficient loopholes in it that would have tied a World Court up in knots until the next millennium. One of the many ways to bypass its principles, regardless if that nation is a signatory to the UDHR or not,  is to enforce a state of emergency in that particular country. 

When the Agong declares a state of emergency in Malaysia, HRH cannot declare the state of emergency is over after a period of time. That responsibility resides in the Parliament. If the Parliament does not annul this government-sponsored royal edict, the state of emergency stays and under such circumstances, both fundamental human rights and civil liberties are suspended.

Furthermore, it allows the PDRM to invoke the Emergency (Public Order and Prevention of Crime) Ordinance (EO) whenever they please and especially when there are “insufficient evidence to prosecute”. The EO allows for detention without trial that can be renewed indefinitely every two years, after the first 60 days of detention (without the need to press charges).

If one is charged under the ISA, one gets to be sent to Kamunting. EO detainees are detained in lockups, or if one is fortunate, at Simpang Renggam. If one is charged under the ISA, the arrest order is either signed by the Home Minister or the Prime Minister. The EO detention order does not require any ministers’ signature and since it is akin to being convicted without trial, the detainees are denied access to counsel as a writ of habeas corpus is irrelevant here. About the only comforting thought is that an EO detainee cannot be labelled a criminal because that detainee was never charged in court or found guilty of a crime. Cold comfort indeed. 

Five. Yes there are five states of emergency being declared since the British left us to our own devices. Four are still in place. Article 150 of the original Federal Constitution before 1960 had a one-year time limit whereby the state of emergency automatically annuls itself and also limits the extraordinary powers of the Executive to only periods of two months at a time. After 1960, Article 149 and 150 of the Federal Constitution was amended to permit the state of emergency to continue indefinitely and the empowering of the Executive full powers until the annulment by Parliament. This is the Emergency (Essential Powers) Act 1964 but it was amended again to grant greater powers to the Executive in 1979 by our current Home Minister’s daddy.  

Laws like the Essential (Ikatan Relawan Rakyat) Regulations 1966 and the Essential (Clearance Of Squatters) Regulations 1969 were the product of an over zealous Executive which gave unlimited and unaccountable arbitrary law enforcement functions and powers to a quasi paramilitary force of volunteers. 

ISA and EO are not the only laws in Malaysia that are invoked to detain a suspect without the need of accountability or trial. The Dangerous Drugs (Special Preventive Measures) Act 1985, and The Restricted Residence Act 1933 both possess the same powers. 

When Malaysia obtained her independence from the British in 1957, we became a free nation of people, or so we thought. When Tunku shouted Merdeka seven times, did he mean Merdeka as in independence or did he say Merde-kah? Being a well-travelled man and perhaps with an intimate knowledge of the French language, can Tunku be a visionary projecting the truth of how life in Malaysia will be after 50 years of UMNO rule? 

In conclusion, Malaya has yet to achieve independence in 1947 when the UDHR was signed. This means that Malaysia was never a signatory of the UDHR. However, all new members of the United Nations after 1947 were supposed to ratify the principal covenants of the UDHR but Malaysia has yet to do so until today. What Malaysia did was to verbally affirm its commitment towards the UDHR. Additionally, the Emergency (Essential Powers) Act 1979, states that as long as the Proclamation of Emergency remains in force, all regulations made under the Emergency (Essential Powers) Act 1964 shall be in force and shall have effect as if they have been made under this Act, and merde means shit in French. 

Merde-kah? Merde-kah? Merde-kah? Merde-kah? Merde-kah? Merde-kah? Merde-kah?