We applaud him, and in our hearts thank him for giving a reminder why many still shoulder on this struggle. As mentioned here, find the unplugged version of law student, Amos Kok‘s speech at the MALSA launch on 20 December 2008. Only minor editorial editions have been made to preserve the original message and tone of delivery in its ‘raw-est’ form. Once refined, surely worth a shot for an academic publication. He speaks of the worsening human rights situation in Malaysia, and justifies the calls for action. Amos – a human rights activist in the making – found at source.
Human rights today is in a precarious position. In this very land that we call home, rights are being eroded. Malaysia remains a signatory to the UN Charter yet such rights are unavailable to us citizens. The irony of it is that rights continue to be infringed, trampled, and derogated to say the least. This is as sad a story as it gets. A tragedy – happening – today and NOW!
In the ‘Two Treaties of Government’ John Locke claimed that the sovereign power was limited and that the people had the right to resort to revolution against the sovereign if power was abused. The early expression of an emergent notion of individual rights can be seen today in most written constitutions in the world, whether or not the constitution is autochthonous. The attempt to protect human rights on an international level begun with the founding of the League of Nations [now United Nations] after World War I and the imposition of certain safeguards of human rights in peace treaties after war for the protection of minorities. It was not until after the Second World War that the international community became convinced of the real and pressing need to protect and promote human rights as an integral and essential element for the preservation of world peace and cooperation. If you had read the papers recently, you would have seen how the Zimbabwean Government sacrificed human rights in favour of politics resulting in the needless loss of thousands of lives. In ‘Gulliver’s Travels’ we read of how the characters are silenced if they don’t toe the line. Drastic, but we’re currently heading in that direction.
Ladies and Gentlemen, this is the main reason why we are gathered here today.
For the last 50 years, voices within Malaysia have expressed concern that a legislative and administrative structure has been emerging which poses a grave threat to the rights and liberties safeguarded in the Malaysian Constitution and under international human rights law. Malaysia’s Merdeka (Freedom) Constitution, promulgated at Independence in 1957, reflected fundamental human rights and political liberties enshrined in the Universal Declaration of Human Rights [UDHR]. Part II of the Constitution, entitled ‘Fundamental Liberties’, include the right to life and the right to liberty of the person (including habeas corpus); equality under the law and freedom from discrimination; freedom of movement; freedom of speech, assembly and association; and freedom of religion. Articles pertaining to freedom from discrimination (Article 8) and freedom of speech, assembly and association (Article 10), in particular, contain a number of qualifying clauses empowering Parliament to legislate any restriction to freedom of expression, association and assembly that it ‘deems necessary or expedient in the interest of the security of the Federation…public order or morality’. These clauses have allowed the fundamental principles of the Malaysian Constitution to be comprehensively undermined and, through legislation, for the balance of power between the separate branches of government to shift sharply towards the Executive.
Ladies and Gentlemen, this goes against the most basic of tenets of the rule of law and of separation of powers. The Diceyean concept of the rule of law seeks to espouse three fundamental illustrations of the rule of law. Firstly, it is stated that there should be no punishment in body or in goods except for a distinct breach of the law. Secondly, no man is above the law and thirdly, the courts are the better protectors of civil liberties. This should be even more so considering that we do have a written Constitution. As such, Parliament is not to be said as supreme for the Constitution is supreme. However, in the recent case of PP v KWK [A child] the court seemed to suggest that the notion of separation of powers in Malaysia is not recognised.
Democracy is more than the ritual casting of a ballot at multi-party elections. True democracy involves participation by the people at all levels so that they have a voice in the discussions and decisions by which they are governed. But democracy must not only govern the political process, it should pervade all sphere of society, including economic and social life. As Malaysia develops and its citizens becomes better educated and more sophisticated, the demand for civil and political rights has become louder. For increasingly larger segments of Malaysian society, a full stomach is no longer enough. The barometer for a mature democratic society is measured by the fundamental liberty enjoyed by its people.
There are 9 rights regarded as fundamental in the Federal Constitution namely liberty of the person (Article 5); freedom from slavery and forced labour (Article 6); protection against retrospective criminal laws and repeated trials (Article 7); equality (Article 8); prohibition of banishment and freedom of movement (Article 9); freedom of speech, assembly and association (Article 10); freedom of religion (Article 11); rights in respect of education (Article 12) and rights to property (Article 13).
Ask the man in the street today what human rights are and if he answers at all, he is likely to suggest that it is a Western concept that plays little or no role in his daily life. Yet it is trite that we are all human, and as acknowledged by the UDHR, that fact alone gives us certain inalienable rights – rights that cannot be removed or trampled over by individuals, groups or governments.
According to Dr Shad S Faruqi [Sunday Star, November 5, 2000] there are 4 categories of restrictions on fundamental liberties in the Federal Constitution namely:
- Restrictions may be imposed by ordinary legislation enacted under the authority of the constitutional provision conferring the right.
- Fundamental rights may be curtailed by legislation against subversion.
- Legislation to combat an emergency may suspend all fundamental rights except freedom of religion.
- Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law.
Within the above context, the following analysis identifies the restrictions and look into proposals to overcome problems relating to them.
1. Restrictions by ordinary legislation enacted under the authority of the constitutional provision conferring the right
An examination of the constitutional provisions would disclose that there are 2 types of rights namely absolute rights and qualified rights. Absolute rights are those without restriction or qualification. Qualified rights refer to the provisions concerned that permit laws to curtail the exercise of such rights under certain conditions. Take for instance, freedom from slavery is an absolute right guaranteed by the Federal Constitution. On the other hand, freedom of speech is a qualified right.
Although Article 10(1)(a) grants to all citizens the right to freedom of speech and expression, Parliament may under Article 10(2) by law restrict this right under 9 grounds namely security of the Federation, friendly relations with other countries, public order, morality, privileges of Parliament, privileges of Legislative Assembly, contempt of court, defamation and incitement to any offence.
Compared to the First Amendment in the Constitution of the United States of America (USA), Article 10(1)(a) of Federal Constitution is too restrictive. The First Amendment stipulated that among other things USA Congress should make no law prohibiting the free exercise or abridging the freedom of speech. As Harding concluded, Article 10 is remarkable for what it takes away rather than for what it gives.
The idea that restrictions are sometimes necessary on political rights is commonplace in other jurisdictions. However, Article 10 fails to place any real restrictions on the restrictions. They are widely drafted that in practice there are likely to be very few possible restrictions which could not be said to come within the kind of restrictions permitted by Article 10, especially as there is nothing in Article 10 to suggest that the courts have any right to review the necessity of legislation restricting one of these rights.
In Madhavan Nair v PP  2 MLJ 264, it was said:
The Malaysian High Court had declared that the use of subjective words in article 10(2) like “necessary or expedient” rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision.
In India, there is a judicial requirement that derogating pieces of legislation must be ‘reasonable restrictions’ (Article 19(2) Indian Constitution). The Indian Constitution requires that the restrictions, even if within the limits prescribed, must be reasonable and the court would be under a duty to decide on its reasonableness.
According to Article 10 of the European Convention on Human Rights, the Parliament of member states are allow to restrict political rights only so far as is compatible with the requirements of a democratic society.
With regard to Malaysia, when infringement of rights is alleged, the scope of the court’s inquiry is limited to the question whether the impugned law comes within the ambit of the permitted restriction. There would be no substantive challenge to these laws even if they were overly harsh or unreasonable. Prima facie, this would seem to indicate that so long as Parliament fulfilled all the procedural requirements in the passage of laws restricting free speech, the same would be valid.
The position in India and under the European Convention is preferred, as it has allowed the Judiciary to scrutinise the enabling provision of the particular Constitution on the grounds of reasonableness and compatibility with a democratic society respectively.
2. Fundamental rights curtailed by legislation against subversion
Powers against subversion under Article 149 Federal Constitution have curtailed the practical operation of fundamental rights. This provision also introduced the broad notions of national security into Malaysia. Legislations enacted under Article 149 may be inconsistent with liberty of the person (Article 5); freedom of movement (Article 9); freedom of speech, assembly and association (Article 10) and rights to property (Article 13) and yet remain constitutionally valid.
Article 149 of the 1957 Merdeka Constitution had a clause that such laws would automatically lapse upon the expiration of one year from the date on which they came into operation. However this sunset provision was removed in the Constitution Amendment Act 1960 and the position now is such laws would continue to exist indefinitely, unless both Houses of Parliament pass resolutions annulling them.
One example of a piece of Article 149 legislation is the Internal Security Act 1960 [ISA]. The ISA permits the Executive to detain suspects without the filing of formal charges. During the 1960s, the ISA was intended to deal with the threat of militant communists. However, in the case of Theresa Lim Chin Chin v Inspector-General of Police  1 MLJ 293, the court ruled that the ISA is valid and from the wording of the Preamble to the Act there is nothing to show that it is restricted to communist activities. It was held that the ISA was not confined only to be used to counter the communist insurgency.
Since the terror attack on the World Trade Centre Twin Towers in New York City on September 11, 2001, USA introduced the Patriot Act 2001 [PA]. This Act empowered the Attorney General [AG] to sign detention orders to detain persons without trial. As both the ISA and the Patriot Act are laws on preventive detention, it will be interesting to make comparisons.
The following summarises the differences between these legislations:
ISA: To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.
PA: To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.
ISA: Applicable to all persons – both citizens and non-citizens.
PA: Applicable to aliens – non-US citizens only.
III. Judicial Review
ISA: Judicial review is restricted. Sections 8B and 8C severely limit the court’s ability to inquire into the legality of a detention except on questions of compliance with procedures.
PA: Judicial review in terms of habeas corpus proceedings is provided by the Act.
IV. Detention Periods
ISA: Section 73 allows the police to detain for 60 days any person who may act ‘in a manner prejudicial to the security of Malaysia.’ The Home Minister may authorise indefinite detention renewable every two years ad infinitum.
PA: The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision for a person to be detained for up to 6 months. The court ruled that AG is authorised to detain aliens as long as removal is reasonably foreseeable.
V. Restrictions or Conditions after Release
ISA: Those released before the end of their detention period are subject to ‘imposed restricted conditions’ for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country.
PA: Either deported or let free. No restrictions or conditions after release.
VI. Report to Parliament
ISA: No equivalent provisions.
PA: Every 6 months, the AG shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the reporting period, the details of the detainees and the grounds for the detention.
ISA: The Advisory Board shall review the detention every 6 months.
PA: The Attorney General shall review the detention every 6 months.
VIII. Sunset provisions
ISA: No equivalent provisions.
PA: The Act shall cease to have effect on December 31, 2005.
USA, the leader of democratic governments and the developed world, has accepted as the norm laws which infringe on fundamental rights and this has given greater credence to the denial of fundamental liberties in the context of other countries. The argument that since USA has the PA thus Malaysia should continue to use the ISA is untenable. As shown above, one can conclude that the ISA is a far more draconian law and offers less procedural protection for fundamental liberties as compared to the PA.
It is submitted that detention without trial is at odds with contemporary international human rights standards and it is an infringement of fundamental rights. Other laws such as the Penal Code and the Police Act with more substantial checks and balances already exist to maintain peace and security. Steps must be taken to ensure that this balance exists in practice and actions by the Executive must be carried out in conformity with international human rights standards.
3. Legislation to combat an emergency may suspend all fundamental rights except freedom of religion
Article 150 of the Federal Constitution gives extraordinary powers to the Executive to act when a state of emergency is declared. Any Act enacted under Article 150 need not be consistent with all fundamental liberties except if it is related to the freedom of religion (Article 150(6)(a)) and continues in force indefinitely until Parliament otherwise determines, whether or not the circumstances giving rise to the emergency have terminated.
In the 1957 Merdeka Constitution, a Proclamation of Emergency and laws passed during such an Emergency shall cease to be in force at the expiration of two months from the date of the Proclamation. They would only continue to have force if they have been approved by a resolution of each House of Parliament before the expiry of the specified period. The sunset provision was meant to prevent abuses by the Executive.
However, the Constitution Amendment Act 1960 removed this highly desirable protective mechanism by providing that neither the Proclamation of Emergency nor the laws passed automatically lapse after two months. Instead, they remain in force indefinitely, until both Houses of Parliament pass resolutions annulling the same.
As the consequence of this 1960 amendment, there are 4 Proclamations of Emergency that are still valid and in force today as none of them had been revoked or annulled. The 4 Proclamations of Emergency are in respect of the Indonesian Confrontation (1964), the political crisis in Sarawak (1966), the May 13 race riots (1969) and the political crisis in Kelantan (1977).
In the Constitution (Amendment) Act 1981, a new Clause (8) was inserted to Article 150, which provides that the courts have no jurisdiction to entertain any application to challenge any state of emergency proclaimed by His Majesty and any laws made there under – thus all questions concerning emergency powers would be left to the absolute discretion of the Executive.
This 1981 amendment effectively places the action to invoke emergency powers beyond judicial review.
The combined effects of the 1960 and 1981 amendments substantially and extensively infringe upon fundamental concepts underlying the 1957 Merdeka Constitution. These amendments completely work to the detriment of the individual and to the benefit of the Executive.
Unrestrained invocation of emergency powers poses a threat to the rule of law and democracy in Malaysia. Lim Kit Siang, the then Parliament Opposition Leader, proposed a review of the exercise of the emergency powers under Article 150 and to formulate steps to prevent abuses of emergency powers. His proposals are as follows:
- The effect of states of emergency on the rights of citizens and the powers of the various branches of the Government should be clearly spelt out.
- The Constitution should enumerate and define the situations, which justify departure from the normal order. There should be separate provisions to distinguish between war with foreign enemies and internal disturbances.
- The duration of states of emergency should be specified. Reviews of the need for the states of emergency should occur at regular intervals.
- The procedure for declaring a state of emergency must be constitutionally defined, giving primary responsibility to the Legislature.
It is submitted that the Federal Constitution, by providing that emergency legislation may be inconsistent with any provision of the Constitution except those concerning religion, citizenship and language is wholly incompatible with the contemporary international standard. A detailed review should be carried out to protect the fundamental liberties of the citizens during emergency periods.
4. Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law
The constitutional guarantees of fundamental liberties are also not entrenched in that they are protected from the amending powers of Parliament. It is technically possible under Article 159 of the Federal Constitution for fundamental liberty provisions to be altered, restricted or even done away with by a two-third majority vote in a constitutional amendment motion.
However, the Indian Supreme Court thought otherwise. In the Indian case of Kesavanand Bharai v The State of Kerala A.I.R. 1973 SC 1461, the Supreme Court of India had to consider the scope and extent of the power to amend the Indian Constitution and whether certain provisions may be eroded by the Parliament through the process of constitutional amendment. The court ruled that the ‘basic structure doctrine’ is to be applied in the Indian Constitution. The basic structure of the Indian Constitution is said to consist of the following features.
- Supremacy of the Constitution
- Republican and democratic forms of Government
- Secular nature of the Constitution
- Separation of powers between Legislature, Executive, Judiciary
- Federal character of the Constitution
Every provision of the Indian Constitution may be amended provided the basic foundation and structure of the Constitution remains the same.
In favour of this doctrine, it can be said that it provides a form of ‘insurance cover’ against legislative over-exuberance. It safeguards the basic structure and value of the Constitution against the power of transient political majorities.
In Loh Kooi Choon v Government of Malaysia  2 MLJ 187, the Federal Court declined to follow the Kesavanand doctrine and held that fundamental rights enshrined in Part II of the Federal Constitution were not inviolate and could be amended by Parliament.
The court’s reluctance to follow the Indian position on civil liberties and constitutional law have resulted in less rights being enjoyed by a Malaysian than an Indian citizen.
Tommy Thomas advocated for the concept of a ‘basic structure’ to be applied in Malaysia. He argued that the acceptance is the only way for the courts to live up to its constitutional duty in preserving and protecting the Constitution in the face of the numerous constitutional amendments by Parliament and the frequent use of emergency powers by the Executive.
It may be useful to recall what Justice Jackson said in the case of West Virginia State Board of Education v Barnette 319 US 624:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the Courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.