Taking liberties with the fundamentals
Malik Imtiaz Shawar
CONSIDERING what is happening around us, it is hardly surprising that many are asking whether there is anyone in control of the country anymore.
The controversies are mounting, with little or no indication that order will prevail in any sense that will inspire confidence, so much so that some, perhaps even those who thought that in order to get better we had to get worse first, have begun to ponder whether Malaysia is on the brink of becoming a disaster.
And while the specifics of each controversy, whether it be the “Allah” decision, the seizure of bibles by Jabatan Agama Islam Selangor (Jais), the continuing clamour about the illicit capital flight and the corruption it entails, or the lifestyles of some cabinet members, it is what underlies these things that is worrying.
For, looking at the bare bones of the tragedy that is unfolding, it has become plain that in Malaysia, the Rule of Law is no longer anything more than a concept that we pay lip service to in order that we do not have to confront the reality of what lies beyond.
The Jais raid, and the raging debate that erupted in its aftermath, was the clearest indication we have had that the boundaries the Constitution and the law have erected around us for the well-being of our society and country no longer matter. Those boundaries are being erased or re-delineated at the whim and fancy of those brave enough to do it.
Were this a discussion about the actions of a few individuals, we could perhaps rest assured, content at the thought that the authorities would ensure that the community was not disrupted by the deeds of these transgressing few.
The difficulty, however, is this — the disruptions were caused by the very authorities that we rely on, those bodies which we expect to know their role and place: Jais for the raid, and the police and the Attorney General’s Chambers for having condoned the disruptions, the latter even having laid the foundation by presumably drafting the legislation that Jais relies on to justify its actions.
The question at the heart of this sorry state of affairs is this: how have things got to this point?
Malaysians some three decades ago, citizens of a still raw and unmeasured nation, did not have to confront these kinds of problems. So, why is it that these difficulties have now become a part of our lives in the present?
I think the answer lies in the fact that we were once a much more tolerant and law-abiding community. The boundaries were respected and the framework established under the Constitution was respected. This was a framework that guaranteed Malaysians a Westminster-style democracy and their fundamental liberties.
It put in place a system that worked well and ensured that we could go about our lives with confidence and peace of mind. Equally significant is the fact that the institutions of the state protected this framework, and for doing so, enjoyed the confidence and respect of Malaysians.
Over the years, however, that system has mutated into something else. The Mahathir administration amended the Constitution, paying little attention to the long-term implications of these amendments and the laws introduced in the wake of these amendments.
The aim of the administration then was to concentrate as much power as possible in the executive at the federal level, the state governments being treated largely as extensions of the former. This it did, along with the co-opting of the institutions and agencies of the state.
This is a period that I think can reasonably be described as involving a shift from the Rule of Law to Rule by Law.
It may be that the Tun Mahathir Mohamad’s administration thought this the best way to push this nation forward on its path of glory. It may have misjudged its grasp of the situation as well as its political strength, for that reason perhaps failing to consider how immune from politics this highly centralised form of government was.
Whatever the case, the politics of the time intruded. The administration faced challenges from within Umno, and from the opposition, which exploited the obvious deficiencies of the Mahathir game plan. This not only resulted in the ratcheting up of the now familiar assertions of racial and religious supremacy, it also led to the further bastardisation of the system.
It is hardly surprising that as a young lawyer and legal activist in the late 1990s and the first few years of the first decade that followed, I was confronted with demands for constitutional revisionism. A growing number of Malays, spurred on by the “ketuanan Melayu” rhetoric of Umno, began to assert that the Constitution was to be understood as enshrining the supremacy of the Malays and of Islam. Any other reading, they said, was unfair, in particular, one that claimed an equality of all Malaysians.
