Unfettered powers of the executive (Pt 2)

posted by din merican–April 14, 2009

www.malaysiakini.com
Unfettered powers of the executive (Pt 2)
by Tricia Yeoh*
April 9, 2009

Similarly, the Judicial Appointments Commission’s members are selected at the sole discretion of the prime minister. This is a cause for concern as former politicians might be appointed at his will.

Although not foolproof, this is a step in the right direction, where for umpteen years the current legal system has been ridden with a lack of transparency and accountability in judicial appointments and the Executive’s interference in the Judiciary. It is hoped that by providing some counsel, judges would be selected and promoted in a more transparent a manner. Neither of the two Commissions, of course, is placed under the jurisdiction of Parliament. How well either achieves its objectives depends on how violently the Executive pokes its nose into their affairs.

You see now that the problem of separation of powers in Malaysia –- or the lack thereof — has led us down a slippery slope. The original Westminster model envisioned by the Reid Commission when formulating the Federal Constitution’s contents has failed miserably. Several factors have led to this situation, namely the historical need for the then Alliance to form a strong central administration, being Malaya’s first Government.

More realistically, the Emergency period from 1948 throughout the 1950s exacerbated the need to curtail freedoms in the form of the Sedition Act 1948, the Printing Presses Act 1948 and later the Internal Security Act (ISA) 1960.

What ‘national security’?

Consider this. Malaysia is one country in the world whose Constitution allows preventive detention without trial during times of peace. This has been said numerous times, but worth repeating that the ISA goes against the very fundamental human right to fair trial. The ISA provides for preventive detention without trial for two years, renewable indefinitely in subsequent two-year terms if the minister is “satisfied that the detention of the person is necessary to prevent [the detainee] from acting in a manner prejudicial to the security of [the country] or to the maintenance of essential services therein or to the economic life thereof “[Article 8(1), ISA 1960].

Although during different premierships the ISA was used for very different purposes, the arbitrary manner of deciding on its application is too highly dependent on the individual personality of the prime minister. We cannot rely on the particular PM’s “mood of the day” or personal character. For example, while Tun Ismail maintained that the ISA would not conflict with democracy and the rule of law, the same cannot be said of the way in which Dr Mahathir flexed his muscle through the same Act.

We cannot rely on the goodwill of a leader, but instead on a system to keep all in check, no matter his character. The argument often used is that of “national security”, which seems to encompass a broad ambit with anything remotely affecting political, social, economic, and developmental stability. While it is true that some level of measure is necessary to ensure stability in a multiracial country such as ours, it is only with an equal respect for and genuine practice of good governance and the upholding of the rule of law that this measure is evenly applied.

This has unfortunately not been the case in Malaysia. There are exceptional situations, of course, in which there exists the very real threat of terrorism at the hand of an individual or a group, whose actions need to be curtailed immediately. In such circumstances, there would have to be solid and reliable intelligence and evidence gathered, without any other legal option. Detainees would also have to be subject to adherence of international human rights laws, without torture, humiliation or degrading treatment.

10,662 people have been arrested under the ISA in the past 44 years, with 12 executed between 1984 and 1993. There are 27 detainees now, minus the thirteen to be released tomorrow. Last year saw arrests of journalist Tan Hoon Cheng “for her own protection”, Member of Parliament Teresa Kok for an offence she did not commit, and blogger Raja Petra Kamarudin for offences he was already being charged for under the Sedition Act. How the ISA is deciphered is subjective, its use too easily tied with ulterior motives. It has been much too easily abused and misused for the sake of securing even greater power to those already in positions of authority. There are no two ways about it: the ISA must be repealed.

Living in precarious times

Malaysia’s National Human Rights Commission, Suhakam, has also recommended its repeal in the long term, calling for judicial safeguards and checks and balances to prevent abuse of fundamental freedoms and undermine legitimate dissent. As it is, the nation is invariably subject to such abuses, especially so since we are still technically under Emergency Rule because none of the proclamations have been revoked.

Yesterday (April 8  ) the new prime minister was sworn in. Today is effectively his first day in office. We are living in precarious times that warrant great leadership. That his has started with the lifting of the banned newspapers and the release of 13 ISA detainees is a good sign, but this does not take away from systemic flaws. Other ridiculous Executive decisions still exist, like barring all Pakatan representatives from entering any national school in Selangor; practice of the Sedition Act, Official Secrets Act, University and University Colleges Act, treatment of refugees, abuse of Police powers, non-independence of the Judiciary – all these do not, in my opinion, augur well for the trend of things to follow. It frustrates me that we can stand for gross unethical and unconstitutional acts, yet continue to call Malaysia a democracy.

I believe that the Malaya, and Malaysia, envisaged by her founding fathers is a far, far cry from where we are today. The flaw of the Federal Constitution is that its crafters assumed that its future leaders would remain gentlemen about this concept of “democracy” and certainly did not predict the rise of authoritarianism that we have experienced in the form of Mahathir. Certain fundamental principles must be returned to if we want to restore our credibility, reaching beyond our current limited heights. This mode of crisis can leave many in despair, but it can also compel us to drive ourselves even harder against the tide of unfettered displays of power and arrogance. Blatant abuse of Executive position must stop. Upholding the rule of law, separation of powers, limited government, freedoms of the people, and the rightful understanding of the role each institution plays are basic building blocks of any nation.

Friends, we have to acknowledge that we are in crisis mode and at a crossroads. You are all here as young, 20 something year olds, intellectual and articulate. You are here for a reason, and I believe you share many of the ideals I have spoken about. We also recognise that the system we’ve had simply does not work. We must use this opportunity to reverse past wrongs and reorient new trends, policies, plans for the future of Malaysia – for your generation, and that of your children. If you are not idealistic now, then when? If you don’t lay out an alternative plan for the country now, then when?

We only have this second chance to get the equation for a democracy right. For all our sakes, and for those yet to come, let’s get it right this time round. Thank You.

*TRICIA YEOH is research officer for the Selangor Menteri Besar’s office. She was previously director of the Centre for Public Policy Studies where she now sits as a member of its advisory panel. The above was her paper delivered at UKEC’s Sixth Program Amanat Negara (PAN) Socio-Political Forum in London recently.

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