The triumph of civil society
ART HARUN
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.
