23rd June 2011, 01:01 PM
This is very important to understand. Malaysia under UMNO is a dangerous place.
Thursday, June 23, 2011
Malaysia is under 4 states of emergency, mind you! (http://art-harun.blogspot.com/2011/06/malaysia-is-under-4-states-of-emergency.html)
According to a MalaysiaKini report, Dato’ Ambiga, the chairperson of BERSIH, YB Khairy Jamaluddin, the UMNO Youth Chief and Dato’ Ibrahim Ali, the Perkasa war general, have all been summoned to Bukit Aman by the police. So the Home Minister said.
On the same day, I read a Malaysian Insider report that three youths are suing the police for placing them under detention without trial under the Emergency Ordinance 1969 for allegedly stealing motorcycles.
Ladies and gentlemen, welcome to Malaysia, and please do not unfasten your seatbelts.
For the uninitiated, allow me to put on record that Malaysia (including when we were Tanah Melayu) has seen 5 state of emergencies altogether. The 1st time was in 1948 when the communist insurgency resulted in 11000 people being killed.
The 2nd time was in 1964 during the Indonesian confrontation.
The 3rd time was in 1966. This was limited to Sarawak following the dismissal of the Ketua Menteri.
The 4th time was in 1969 following the 13th May incident.
Lastly, it was in 1977, which was limited to the state of Kelantan to deal with the political crisis there.
The last 4 emergencies have not been lifted till today.
What is so frightening about state of emergencies, you may ask.
This is the most frightening. Article 150, Clause 6 of the Federal Constitution allows the Parliament to pass any law and His Majesty the King to promulgate any ordinance during state of emergencies and those laws and ordinances will be valid even if they are repugnant or inconsistent with any of the provisions of the Federal Constitution.
In other words, during an emergency, any kind of law would be valid. Which means, the Federal Constitution may be ignored, side-stepped or just plain torn, shredded and burned. Which finally mean, you and I, citizen of Malaysia, do not have any kind of recognisable right during an emergency.
Various emergency regulations have been promulgated and used since 1969. These regulations give wide and really draconian powers to the police and government. The followings are just some examples.
Firstly, a person may be detained without trial and banished to a certain area without trial.
Secondly, In the EMERGENCY (ESSENTIAL POWERS) ORDINANCE, 1969(Ordinance 1 and Ordinance 2) ESSENTIAL (DISPOSAL OF DEAD BODIES AND DISPENSATION OF INQUESTS AND DEATH INQUIRIES) REGULATIONS, 1969 for example, regulation 3 ( b ) provides as follows:
“where a Magistrate or a Coroner responsible for holding a death inquiry or inquest on the body of any person is satisfied that such person has been killed as a result of operations for the purpose of suppressing disturbances by the Police or the Malaysian Armed Forces or as a result of injuries caused by disturbances, the Magistrate or the Coroner, as the case may be, may dispense with the holding of a death inquiry or inquest on the body of such person.”
That would of course mean no police killing could come under scrutiny during an emergency.
Thirdly, the Home Minister can ban any kind of printing material which he deems it as prejudicial to public order. He can even open all postal packages, read all telegrams, articles and printed matters and detain those material under the ESSENTIAL (NEWSPAPERS AND OTHER PUBLICATIONS) REGULATIONS, 1969.
Fourthly (hold on really tight to your seats for this one), under the ESSENTIAL (PROHIBITION OF ACTIVITIES RELATING TO ELECTIONS)
REGULATIONS, 1969, elections may be suspended, during which suspension, regulation 2 provides:
“Notwithstanding any written law to the contrary. for so long as the elections are suspended all activities relating to elections are hereby prohibited.”
Fifthly, there is such a thing called the ESCAR, namely, the Emergency and Security Cases Regulations which, among others:
permits the Attorney General to choose whichever Court he likes to try a security case. The Court may sit in any place or state regardless of where the alleged offence took place.
if the Court is satisfied that a witness is afraid to testify, the witness can testify in a manner that he or she cannot be seen or heard by the Counsel of the accused! Now, tell me, how the hell is the accused going to defend himself against such witness?
hearsay evidence may be tendered and admitted by Court.
The above are but examples of the extreme powers that the State has during emergencies. Powers such as these are open to abuse and there is no mechanism to check this abuse. These regulations are not challengeable in any Courts of Law. Actions taken by the State under those emergency regulations are also not usually challengeable in any Courts of Law.
Nobody in their sane mind would say that Malaysia, in reality, is in a state of emergency now. Chaos, maybe. In a state of dream, perhaps. State of denial, obviously. State of incorrigible stupor, maybe too. But emergency? Excuse me.
The only reason why these proclamations of emergencies have not been lifted is because the government is desirous of maintaining all these draconian laws and regulations.
These regulations provide shortcuts to the likes of the police. Why bother investigate a case thoroughly when they can detain any person without trial and banish them to a certain district?
If it was true that the 3 youths have been stealing motorcycles, the obvious right thing to do in any civilised society is to have them produced before the Court and charged.
An obvious case of abuse of emergency ordinance is the case of the Kelantan’s claim for the petroleum royalty. The case for the government rests on the definition of state’s waters as defined in Section 4 (2) of the Emergency (Essential Powers) Ordinance 1969, which provides that a state's waters is only within three nautical miles from its shores. (source: this article).
That is a classic abuse of emergency laws. How can an economic claim be settled by reference to a rule which is made to cater for a state of emergency?
The continuous existence of states of emergencies in Malaysia is repugnant to the notion that Malaysia is inching towards a the status of a developed state; that we are a liberal and tolerant society;that we are a country practising democracy with a vibrant society able to engage in a public and civil discourse over whatever issues which are important for nation building.
The police force is a law unto themselves in Malaysia. This has to stop immediately. Lest Malaysia would be viewed dimly by the international community. We are not a police state, yet. But we surely are displaying obvious symptoms of one.
The latest episode involving the summoning of Dato’ Ambiga nd YB KJ* is but an example of the police force acting at their whim and fancy. These two persons have not committed any offence. Nor have they, under the law, attempted to commit any offence. What power does the police force have to summon them to Bukit Aman? Why are they being summoned? What if they did not appear in Bukit Aman? What would the police do?
*as for Ibrahim Ali, there is obviously a reason, or even several reasons, to summon him.
Posted by art harun at 11:12
Labels: Constitution, Government, Human Rights, Legal, The Police
24th June 2011, 04:54 PM
In-Spire Journal of Law, Politics and Societies (Vol. 5 No. 2 – 2010)
THE EMERGENCY LAW IN MALAYSIA
Political Security or Liability? (http://www.in-spire.org/archive/Vol%205-%20no2/The%20final%20PDF/yaakop.pdf)
Rizal Yaakop (1) University Kebangsaan Malaysia
The Emergency Law
The Declaration of Emergency
The Political Security
Political Security or Liability?
One of the important elements in Malaysian politics is the enactment and continuation of emergency law and regulation adopted by the government to maintain political order and stability in this country. The fundamental issue in Malaysian politics was the existence of emergency law and the declaration of emergency state. Both provide the government and the authorities under it with exceptional power which decide the shape of politics in this country. The ultimate political power enjoyed by them was onetheless given by the Constitution of the state. What puzzles us is whether Malaysia is still under a state of emergency and whether such law provide security or liability for the people. Since the state independence in 1957 until the collapse of communism in 1989, the need to protect the state from the communist insurgencies and subversive elements has generated emergency law as a form of extra legal responses towards any acts which were considered prejudicial to national security. This article tries to understand the historical and political development and consequences of Malaysian Emergency Law by utilising declassified primary data from British National Achieve and various secondary data such as books, journals and newspapers.
One of the important elements in Malaysian politics is the enactment and continuation of emergency law and regulation adopted by the government to maintain political order and stability in this country. (2) Such law and regulation existed due to earlier British strategy to contain communist movements in 1948 when the Malayan Communist Party (MCP) had declared a militant struggle towards the British which led the latter to announce a state of Emergency in Malaya until it was over in 1960. Before independence, the Malayan government led by the British had full power to make any kind of law to deal with subversion and with any emergency matters, provided it had the necessary majority in the legislature, because there was nothing in the constitution to restrict its power. The legislature could pass any law it thought fit, and so it had passed the Emergency Regulation Ordinance (ERO), 1948. The executive was thus empowered to make drastic emergency regulations. However, in 1960, the Ordinance was replaced by Article 149 and 150 in the Federal Constitution of Malaysia. The two Articles were created as a continuity of ERO. It is argued that the two articles provide Malaysian government and the authorities under it with exceptional power which decide the shape of politics in this country. The ultimate political power enjoyed by them was nonetheless given by the Constitution of the state. What puzzles us is whether Malaysia is still under a
1 Dr Rizal Yaakop is a Senior Lecturer at School for History, Politics and Strategic Studies, University Kebangsaan Malaysia
2 Malaysia is a country formed in 1963, consisting of states in the Federation of Malaya, Sabah, Sarawak and Singapore. Singapore became an independent country in 1965. During independence in 1957 until 1963, the state was known as The Federation of Malaya which excluded Sabah and Sarawak. Malaysia is now a federal parliamentary democracy with a constitutional monarch and the Yang di-Pertuan Agong as the Head of State. It is now a federation of 13 states and 2 federal territories with a population of over 27.5 millions in 2008. The Malaysian society is a mix of a few ethnic groups: Malay (53.3%), Chinese (26.0%), indigenous (11.8%), Indian (7.7%) and others (1.2%) (www.state.gov). The fact that this country practicing parliamentary democracy and maintaining the role of the monarch, is a real challenge in security law making given that demands from its multiethnic society must be critically considered before any laws could be endorsed by the parliament and the monarch.
state of emergency? and whether such law provide security or liability for the people? The two questions are important to understand first, whether Malaysia is still continue as an emergency state. Second, the implication of emergency laws whether it could be regarded as imperative to political security and stability or a liability to Malaysian society.
Emergency law here refer to the Article 149 and 150 of the present Federal Constitution of Malaysia. Political security is defined as an absence of threat to organizational stability of the state. The understanding of political security in Malaysia is also challenging since „political sector is the widest sector and is therefore also a residual category‟ (Buzan 1998: 141). There is a risk that the category will become less coherent than most of the others because it is produced by substracting from other sectors and because that all security is political. However, it is considered coherent as long as it is made up of those cases in which the threats themselves are predominantly political in form (Buzan: 1998: 142). Political liability refers to the consequences of emergency law that might threaten social justice and human right. The term liability here refer to the cost that the Malaysian public have to pay in order to gain their full political rights. For example, detention without trial is regarded as a liability due to its constraint to public political rights. The structure of this paper is organized by first explaining on the Emergency law and the declaration of emergency law. It then proceed to discuss political security and liability aspect of such law and declaration. The paper then discussed the issue in the context of Malaysian politics before making a brief concluding remark.
The Emergency Law
The existence of emergency law in Malaysia can be seen from British introduction of Emergency Power Regulations to crush Communism during the colonial era. These Regulations allowed for detention without trial, in which the civil legal code took second place to military necessity. Even then, the government took twelve years to end the emergency that began in 1948. (3) Many of these regulations would not have been constitutional if made after independence, and the 1957 Federal constitution of Malaya recognized this by expressly providing as temporary measures that regulations made under the 1948 Ordinance continued in force after independence, not withstanding that they were inconsistent with some provisions of the constitution. Many restrictions were imposed by the constitution on both the legislature and the executive, and as a result the government as no longer free to do what it liked when dealing with subversions or with emergency situations. This restriction is for instance, a forbiddance of any detention without trial before
3 The existence of the Emergency was a reason for granting, not withholding independence. After independence, the Communists could no longer claim convincingly that they were engaged in an anti-colonialist struggle. To be precise, the Emergency in itself determined the speed or the manner of Britain departure from Malaya. Although Malaya gained its independence from Britain, the British legacy remained in terms of the Communist problem, a new form of political system and change in the form of society. As noted by Hack (2001: 108.) and Harper (1999: 55) the communal strife and the Emergency had put the British in a position where they could deliver security and effect a gradual decolonization according to their design. The Malayan Emergency lasted another twelve years until 31st July 1960. However, the effective defeat of the Communist insurgency by the British and colonial army, police and security services had been achieved by 1958 (Ramakrishna 1999: 242).
warrant was given by the magistrate. Therefore the constitution was amended in 1960 and article 149 and 150 were created as measures to give the government powers and some flexibility to deal with emergency matters. The first deals with subversions and the latter with the declaration of emergency state.
Malaysian constitution recognized that to deal with subversion and emergency matters, both the legislature and the executive had to be armed with special powers if the state was to survive. Two articles in the constitution, namely Article 149 giving Parliament special powers to deal with subversion, and Article 150 giving the executive and Parliament special powers to cope with an emergency. The special powers conferred by Articles 149 and 150 overlapped, but were quite distinct. The powers are overlapped because both articles provide similar actions- both give permission to detention without trials. Article 149 empowered Parliament to make laws against subversion irrespective of whether or not an emergency had been proclaimed, while the special powers conferred by Article 150 could be assumed only after an emergency had been proclaimed. During an emergency proclaimed under Article 150, the executive authority of the Federation extended to any matter within the legislative authority of a state and to the giving of directions to a State Government or a state officer or authority (Hashim 1972). Article 150(2A) of the Malaysian Constitution clearly states that the Head of State Yang di Pertuan Agong may issue a Proclamation even when a previous Proclamation is in operation. The Agong also is immune from judicial review under Article 150(8)(a) of the Malaysian Constitution (The Federal Constitution of Malaysia). The Agong is the Head of State with no executive power but was given exceptional power to declare emergency. The final say on whether or not to declare the emergency lies with the Agong after he discussed the matters in the Meeting of the Rulers attended by all the Chief Minister and the Head of all Federal States consisting of the Kings and Governours. It is important that the Agong is immune from judicial review so that nobody can challenge the decision to declare emergency in a court.
However, the application of emergency law changed after the 13 May 1969 riots occurred; the government once again tightened the security belt by amending the Internal Security Act (ISA) to undermine any subversive elements. Following the 1969 rioting, the act was amended, widening the concept of sedition to cover matters with „a tendency…to promote feelings of ill-will and hostility between different races or classes of the population of Malaysia‟ and prescribed the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution. The Sedition Act, sections 3(I) (e) and (f). Part 3 of the constitution dealt with citizenship, primarily the conditions required for non-Malays. Article 152 established Malay as the national language, although it also guaranteed that using, teaching, or learning any other language cannot be prohibited or prevented. Article 153 obliged the government „to safeguard the special position‟ of bumiputras; at the same time „the legitimate interests of other communities‟ must also be respected. (Crouch 1997: 82).
In 1971 the constitution was amended to extend the application of the Sedition Act to Parliament itself and thus removed parliamentary privilege from discussion of these subjects and other issues considered sensitive. When the Parliament was reconvened after 1969 riots, a White Paper was issued which In-Spire Journal of Law, Politics and Societies (Vol. 5 No. 2 – 2010) proposed a series of constitutional amendments designed to achieve two main objectives: first, to remove sensitive issues from the realm of public discussion and second, to redress the racial imbalance in certain sectors of the nation’s life. To accomplish the first objective, the government prohibited any questioning of sections of the Constitution especially on the powers and status of the Malay Rulers, citizenship rights, Malay special rights, the status of Islam as the official religion and the status of Malay as the sole national language. In pursuit of the second objective, the government expanded the Malay special rights to ensure more Malays entering professions where they were grossly underrepresented (Means 1976: 402).
In 1980, the Malaysian Supreme Court ruled that while the Court could not revoke a proclamation of emergency which suspended the rights of its citizens, the Court might advise cabinet members to revoke the proclamation and argued that failure to do so would be an abuse of their discretion (Chowdhury 1989: 62). As a result, two parallel legal regimes existed in Malaysia—laws were made under the general regime and also under the emergency regime. In Malaysia, the judicial review of the proclamation of a state of emergency was extremely limited because of amendments to the Constitution in 1981 (Tan and Thio 1997: 665). The Official Secrets Act was another law tending to restrict the issues that the opposition could raise against the government. Before its amendment in 1986, the act covered the unauthorized publication of any information in the hands of the government, no matter how significant or widely known (Crouch 1996).
Following the 1989 amendments to the act that virtually eliminated the possibility of court challenges to detention, the government was no longer compelled to attempt to establish a credible link between a particular detention and a threat to national security. Most important, amendments to the ISA in 1989 have removed even the smallest of safeguards to the Act. Section 8B(1) reads:
There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of any act done or decision made by the Yang di Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement (emphasis added) in this Act governing such act or decision (www.law.qub.ac.uk).
The Declaration of Emergency
In Malaysia, five declarations of emergency had been declared. First in 1948 to weaken the Malayan Communist Party (MCP). Second, in 1964 due to a conflict with Indonesia. Third, in 1966 the emergency was restricted to the State of Sarawak to deal with the constitutional impasse caused by the dismissal of the Chief Minister of Sarawak. Fourth, in 1969 to deal with ethnic conflict. Fifth, in 1977 to the State of Kelantan, due to worsening Central and State relations.
The first emergency was declared due to arising communist problem in Malaya. As the failure of the MCP in 1948 to carry out its constitutional struggle became clear, the movement shifted to a militant posture. Some of the MCP members began to destroy rubber plantations and economic as well as industrial targets. The British then banned the MCP after the killing of three European planters, which led the British to declare an Emergency (British Public Record Office). This action was due to the British view that the Communist insurrection in Malaya was part of the regional revolution instigated by the external Communist movement (Brimmell 1969; Hanrahan 1954). Stockwell (1993: 66) argued that the declaration of Emergency determined the British government way in handling a heavy pressure from certain pressure groups, which represented planters and tin miners‟ interest. The Government, led by Prime Minister MacDonald was certain of the connection between Malayan lawlessness, the MCP activities and the Communist global strategy that he asked the permission to outlaw the MCP.(i) Be this as it may, the MCP militant strategy was a threat to political security as noted by Short (1975) the resurrection of the MCP in 1948 was perceived as a Chinese challenge to Malay political power that had been legitimized by the Federation of Malaya Agreement of 1948 (Andaya 1982). In addition, the British government also reported that the Chinese instigated most of the trouble in Malaya as they opposed to the regime of the Chinese National Government (British Public Record Office).
The second declaration of Emergency can be seen as Internal Security Act (ISA), a new version of 1960 Emergency Law was invoked during the Indonesian Confrontation in 1963. The landing of regular Indonesian troops in Malaya led to the proclamation of security areas on 11th August, 1964. These covered the area directly threatened-the territorial water and adjacent lands up to two miles from the low water mark of the States of Malaya and Singapore. Within a month, the proclamation covered all areas of the federation, including Sabah and Sarawak (Singh 1981: 40). A full state of emergency was declared in September 1964. Although the threat from Indonesia ceased in less than two years, the state of emergency proclaimed on 3rd September 1964 was never revoked. Confrontation thus had a major effect in creating a permanent securitization of Malaysian politics. The 1964 Declaration of Emergency of the Confrontation period was never revoked. The third emergency, although limited to a single state, also proved to be equally long lasting. In September 1966, Emergency was proclaimed in Sarawak, the biggest state in Malaysia, as an addition to the national Confrontation Emergency. This proclamation was to enable parliament to meet in emergency session. In this session, the Government introduced legislation to enable the Governor of Sarawak to convene Sarawak‟s Council Negri (Sarawak legislative body) and also to give power to the Governor to dismiss the Chief Minister, who no longer commanded majority support in the Council (Foreign Affairs 1966: 58.). The Government argued that the Emergency was due to the problem of Communist activities and Communist organization in Sarawak. Further, the Federal Minister claimed that the ability to contain the Sarawak Communist movement was important to political stability throughout the Federation. In addition to the Communist threat, there were also certain political parties which were not averse to making use of the Communists to further their political ends.
The fourth emergency was due to the ethnic riot of the 13 May, 1969. It marked a climax of communal dissatisfaction as the riot and was precipitated by Chinese political gains in urban area. It put at centre stage a Malay nationalist discourse that emphasized the economic and cultural weakness of Malays. The incident was stimulated by Malay anger during the election campaign for the 1969 parliamentary and state assembly elections in Peninsular Malaysia, when opposition leaders showed little In-Spire Journal of Law, Politics and Societies (Vol. 5 No. 2 – 2010) respect for the Alliance„s governing status and prerogatives, and the DAP spoke on issues calculated to offend Malay sensitivities. The matter became worse when both the Alliance and the opposition parties indulged in open, public and heated debate. The Malays were taken aback by this decline in UMNO fortunes. In turn, the Chinese celebrated, holding „victory‟ processions throughout Kuala Lumpur. In these circumstances, Malay street gangs had clashed with Chinese secret societies, culminating in the May 13th riots (Von Vorys 1973). The incident was also a result of some socio- political issues. As noted by a Government Report upon it, the 13 May tragedy was due to differences in interpretation of the constitutional structure by the different races in the country, and the growing political encroachment of the immigrant races against certain provisions of the Constitution which relate to Malay language and the position of the Malays, principally Articles 152 and 153; the incitement, intemperate statements and provocative behaviour of certain racialist party members and supporters during the 1969 General Elections; the part played by the MCP and secret societies in inciting racial feelings and suspicions; and the anxious, and later desperate, mood of the Malays as a result of racial insults and threats to their future survival and well being in their country (The May 13 Tragedy Report 1969: ix).
Finally, the 1977 Emergency was declared in Kelantan to deal with a political crisis caused by the struggle of the ruling party at the federal level to impose on the state a Chief Minister of its own choice. Before the emergency, the PAS party agreed to join the Alliance government in 1972 The terms of agreement were reached in September 1972 between Prime Minister Tun Abdul Razak Hussein and the PAS leader, Datuk Mohamed Asri (Means 1976: 406). It was acknowledged that Kelantan would stay a PAS stronghold, but Umno would have a share in the state‟s PAS-dominated government. PAS then joined the coalition government, with Asri as land development minister, while a number of PAS leaders were appointed to lesser federal posts. Participation in the BN coalition appeared to benefit PAS leaders more at the federal than at the state level as Umno-PAS rivalries intensified in Kelantan, leading eventually to PAS‟s decision to remove the incumbent Chief Minister, Mohamed Nasir for defying party instructions in 1977. A “no-confidence” motion was tabled in the Kelantan state assembly and Mohamed Nasir called for the dissolution of the state assembly. His supporters demonstrated in the streets, and violence and looting erupted which led the Federal government to declare a state of emergency.
Overall, five separate emergencies have been declared in the country, one pre-independence, the others post-1957. On the national level, the first was declared in 1948 at the start of a twelve-year Communist insurgency and was lifted in 1960. The others, declared in 1964, 1966, 1969 and 1977, have not been lifted (Das 1996). Out of these four Proclamations of Emergency, only two Proclamations were justified by the grave emergency conditions of the time, namely, to deal with the Indonesian Confrontation and the May 13 riots. However, all the four sets of conditions giving rise to the four Proclamations of Emergency have long ceased to exist. Furthermore, not all the declarations necessarily address grave danger. However, despite no declaration of emergency, Malaysia is always in a state of awareness of any subversive elements and threats to its stability and security.
The Political Security
As a result of a series of emergencies, Malaysian politics is based on its own unique historical experience, in the way the state and society developed before and after the independence, and the legacy of the crisis period marked by several declarations of emergencies. Malaysia was born in an era of crisis. From 1948 untill 1960, the state was struggling from Communist insurgencies. Again, a similar threat continued until 1989. The state was confronted by Indonesia in 1963, and serious ethnic riots occoured in 1969. These crises had put Malaysia in alarm and had taken security as a serious issue. Although militant threat from communist or neighbouring countries no longer exist other form of threats that continue to threaten political stability still exist. In this context, the Malaysian ruling regime had a long history of securitizing security issues to achieve certain political goals. It was evident that proclaiming emergency rules as well as setting security in political agenda has stood the regime in good stead. It is a well-developed political tool with an authoritarian pedigree. It was a useful instrument to adopt with reference to state building and maintaining political power. The strategy was earlier adopted during the Tunku administration, mainly as the basis to form a new federation, aiming to bring Borneo territories under the Peninsula control and to merge them into the Federation of Malaysia. At the same time, the Malay leaders secured their position by securitizing Singapore and Indonesian threats to freeze the development of the opposition parties.
From political security point of view, the emergency law was regarded as a safeguard to social harmony and political stability. The regressive measures taken since independence mostly stem from the legislation which impacted on constitutional liberties. Under the emergency provisions of the Constitution, once a state of emergency was proclaimed, the executive might invoke powers to override constitutional provisions. The NOC reports on the 13 May, 1969 riots, explained that such emergency provision was considered as an entrenched provision as a result of agreement between all the communities in Malaysia. It was also the failure of this entrenched provision, which might lead to ethnic problems and riots. As the report explained:
Those who believe in the democratic tradition tend to think in terms of fundamental political liberties, freedom of speech, freedom of assembly and freedom of association. This belief, however, has never accepted the theory that any person can advocate treason or sedition or what comes to the same thing, the abolition or advocating the overthrow of constitutional government by force, fraud or subversion (The May 13 Tragedy Report).
For the major part of its life, therefore, Malaysia has existed under a continuous state of Emergency or more accurately under overlapping proclamations of Emergency. It is evident from the colonial experience and especially from the Emergency period that political power in Malaysia would be communally based, in the hands of the dominant Malay community. The challenge for politicians in this period lay thus in the task of inventing and implementing a political system and social order that would prevent communal clashes and enhance stability. The ruling regime required more than military security to substantiate its claim to legitimacy. The Emergency gave the British colonial power the opportunity to deflect the forces of revolt by establishing a political party system. In 1949, the Emergency was indirectly responsible for the creation of the MCA. The Alliance Party has its roots in a local electoral pact between the branches of the UMNO and MCA in 1952. The UMNO-MCA alliance won nine of the twelve seats in the Kuala Lumpur municipal election on 16 February 1952. In 1954, the Malayan Indian Congress (MIC) was accepted as a third partner of the Alliance. The success in the formation of the Alliance also assisted in speeding up independence, which was initially planned to take place only after the end of the Emergency. Independence, therefore, was based on the ability of the local elite to promote political security. From a military security point of view, Malaya was still threatened with the Communist insurgency and no one was expecting the transfer of power before 1960. British protection was considered necessary because, as mentioned by H.S. Lee, the United Kingdom government could not afford to see Malaya overrun by the Communists (British Public Record Office). The MCP main agenda was to topple the Malayan government and to establish a Socialist Republic.
During 1960s, the first Prime Minister Tunku succeeded in sustaining political security. Tunku and his deputy, Razak eliminated communist political influences. Several leaders of Party Rakyat and Socialist Front were accused of being Communist sympathizers, who aimed to establish a Socialist republic in Malaysia.During the period after the Indonesian Confrontation, the Labour Party was accused of being a vehicle of Communist infiltration, which contributed to internal conflict, and it suffered the departure of many moderate leaders, especially the English-educated moderates, in 1967 and 1968 (Vasil 1971: 204). With many of its leaders arrested under the ISA, the party broke down and decided to boycott the 1969 election.
Tunku‟s leadership was then taken by Tun Razak who had to face the 1969 ethnic riots and opted to use the armed forces to restore order by force. The riots had transformed the political system into an interim regime which ruled for two years. An Emergency was declared and parliament was closed. According to Cheng Teik, „Razak‟s modification of the usual rules of the game and decision to use Emergency power might have been necessary to gain political stability. It also indicated that in general, the Malays, whether inside or outside UMNO, had not yet fully conditioned themselves to accept shifts in power that appeared as transfers of power from them to the immigrant races‟ (Teik 1971: 40). After the establishment of the National Operation Council (NOC) after the 1969 riots, although the Tunku declared his commitment to democracy explicitly, Razak was more prone to continue the emergency measures until he achieved a comprehensive form of political security. In achieving this, Razak referred to the idea of income distribution to the return to democracy. He explained that democracy could not work in Malaysia in terms of political equality alone. The democratic process must be spelt out also in terms of more equitable distribution of wealth and opportunity (Straits Times 1969). At one point, in order to achieve this, Razak even implied that an indefinite postponement of the restoration of democracy was necessary (Teik 1971: 33). The Razak‟s leadership skillfully set security issues on the tope of political agenda by using the threats of Communism and communalism in order to solve the intra-party conflict in UMNO. The prospect of accusation as a Communist sympathizer and the detention under the ISA allayed many fears in the state. The Razak‟s administration securitized the radical political movement to tackle some of his political opponent despite the emergence of a real Communist threat. In this case, the ISA was intended to justify the detention of political threats rather than for Communist and subversive purposes.
The foundation of the Malaysian leadership in using ISA was based on a specific political interest. This was an authoritarian measure taken apparently for the benefit of political security. A few cases in the period of 1970s and early 1980s can be shown here.
In Sarawak, a leading member of SNAP, Datuk James Wong, was detained in December 1974, in this case under the Preservation of Public Security Regulations because of his alleged support for Brunei‟s claim to Limbang (New Straits Times 1975). Others detained during the 1970s included the University of Malaya anthropologist Syed Husin Ali from 1974 to 1980; the PSRM leader Kassim Ahmad from 1976 to 1981; the Muslim youth leader Anwar Ibrahim from 1974 to 1976; two DAP members of parliament, Chan Kok Kit and Chian Heng Kai. Invoking the ISA in mid-1976, Ghazali arrested A. Samad Ismail and televised his confession about sundry plots and schemes. In November, he jailed two government members, Abdullah Ahmad and Abdullah Majid, for the same reason. They were detained in an operation which Ghazali Shafie claimed was necessary to thwart a Communist conspiracy aimed at influencing senior UMNO leaders. The arrest was followed by the detention in Singapore of Hussein Jahidin, a Malay newspaper editor who „confessed‟ to being a pawn in an elaborate plot inspired by A. Samad Ismail (Case 1996: 126). Local leaders of PAS, detained after peasant demonstrations in Kedah in 1980; and leaders of the Airlines Employees Union arrested after industrial action taken by Malaysian Airlines System workers in 1978 to 1979. In 1987 some Non Governmental Organization leaders, such as Aliran‟s president, Chandra Muzaffar, members of environmental groups, and Christian social-welfare activists, as well as DAP and PAS politicians, were also detained. In 1987 Raja Tan Sri Khalid Raja Harun was detained under the ISA for questioning about loans approved by the Perwira Habib Bank during his period as a bank director. The high court ordered his release on the grounds that the application of the ISA was unlawful because the case did not involve national security. Harold Crouch (1997: 80) argues that in justifying the use of the ISA, the police claimed that corruption in the bank had caused anger in the armed forces, which could have then threatened security because the bank was partly owned by the military pension fund.
During the Prime Minister Mahathir‟s administration, the application of ISA was stricter and the right of judicial review on detention without trial was absent. This was condemned and rallied in Malaysian election since 1999 until now. Mahathir strict stance on the application of ISA can be seen for example in 2001 as Mohamed Ezam Mohamed Noor (Youth Head of Parti Keadilan Nasional), political activist Hishamudin Rais, Tian Chua (Keadilan Vice-President) and Saari Sungib (ex-president of Islamic NGO JIM), had been detained for participating in an "unlawful assembly" (i.e. attending a gathering without a police permit), and were ordered to be detained at the Kamunting Detention Centre. In the aftermath of September 11 tragedy, Nasharuddin Nasir was detained under the ISA for alleged involvement with "Kumpulan Militan Malaysia" a group which was alleged to have indirect connections with the Al-Qaeda terrorist network.
24th June 2011, 05:13 PM
Apart from the proclamation of the Emergency and the institutionalization of the security policy, the ISA has often been used to stifle legitimate dissent. The continued implementation of the ISA became the excuse for the authorities to govern the country on a permanent emergency basis. The ISA was undoubtedly one important reason why Malaysia was permanently under multiple states of emergency, for the ISA was not an ordinary piece of legislation to be used under ordinary circumstances. Since emergency was a condition which permitted issues to be securitized to achieve certain political purposes, the ruling regime had continued the condition so that security would always be on the top of the political agenda. The permanent state of emergency had provided the backdrop to justify the continuation of an extraordinary law like the ISA. Today, the arguments in support of the ISA in essence rest on those of cultural relativism. Framed in terms of „Asian values‟, the country‟s leaders have argued that in the country‟s social context, it is more important to preserve social harmony and collective welfare than to uphold a „western‟ notion of human rights which focuses on an individual‟s rights against the state (Faruq 1999). As a result of emergency law, the opposition parties had no greater power than that of rallying some support in certain constituencies. The opposition had failed due to the detention of their leaders under ISA. The cases in Malaysia show that in administrative decisions to detain people under the ISA, the scope for judicial review is very limited. At a forum held at the Chinese Assembly Hall in late April 2001, SUHAKAM Deputy Chairman Harun Hashim, made this blunt observation regarding the ISA and judicial review:
in the 1970's and late 1980's through early 1990's—when the courts made proactive decisions, the executive would rush to Parliament to amend the laws. It is worth noting that one of the amendments to the ISA was the stipulation disallowing judicial review … the Act has been amended 19 times, each time dealing a blow to human rights! (www.onmalaysianlaw.com)
All that Article 149 did is to make provisions that the ISA is valid even though it contains provisions contrary to or inconsistent with Article 5 (relating to personal liberty), Article 9 (relating to prohibition of banishment and freedom of movement), Article 10 (relating to freedom of speech, assembly and association) and Article 13 (relating to property) of the Constitution. As an example s 73 of the ISA that allows (for) detention for more than 24 hours without the order of a Magistrate contrary to Article 5(4) of the Constitution is valid by virtue of art 149, where otherwise it would have been void as being inconsistent with Article 5(4) (www.onmalaysianlaw.com)
One could argue that Emergency Law could also become a liability to Malaysian as it may be used to gain control and to sustain political power. The use of laws in cases of non-emergencies and the practice of arbitrary detention without trial was found party contributed to degradation of human rights in Malaysia (Edmund Bon Tai Soon INSAF XXXVI 2007, 77-88.); (Suara Rakyat Malaysia, “Human Rights Report 2005: Civil and Political Rights” (2006); Human Rights Commission of Malaysia, “2005 Annual Report” (2006).
The application of emergency laws for the sake of security bears several handicaps.
First, the ruling regime also had been very much influenced by the events in the 1960s to the extent that they would not compromise on the issue of political security. However, this phenomenon created a set of norms and values that could be exploited by leaders as they might securitize almost everything to achieve political aims. This is no surprise as the security policy itself covers a wide area of human life. Malaysia‟s national security policy has six main objectives. They are preservation of the Constitution, including recognition of the Sultans, Islam, the Special Rights of the Malays and the rights of other races; preservation of national unity and harmony; economic development as an integral component of security; vigilance against internal threats to security; protection of sovereignty and territorial integrity; and promotion of a stable and peaceful local, regional and global environment (Tan 2002: 26).
Second, although the emergency measures and national security policy permitted the government to maintain and consolidate its rule but it as well also permitting UMNO to strengthen its position vis-à-vis the other parties. UMNO power also means BN hegemony as the government was under the control of the Malays‟ political leaders and the military leaders. BN hegemony was then achieved as the NSC was under the control of the Malays‟ political leaders and the military leaders. Malaysia also set up a police and armed forces which were subservient to civil political leaders. To balance with the military body, the police force was much more developed, with paramilitary forces, which were able to back the government in case of a military coup. By such means, political power was concentrated substantially in the hands of the Malay leadership.
Third, the emergency laws also established a political culture, which enlarged the gap between the Malays and the Chinese. The Malays feared rule by the Chinese and doubted an absence of identification of the Chinese with the local culture. Since colonial period, the Chinese were stereotyped either as Communist or a sympathizer of the Communist cause. This preconceived attitude further alienated the Chinese from the political and social order in Malaysia (Islam 1989: 178.). This political culture influenced the later multi-ethnic society in Malaysia. Since Malaysia was a multi-cultural state, the policy makers and the ruling regime made security decisions based on the norms and values of the society. As Katzenstein (1996: 2) notes, security interests are defined by actors who respond to cultural factors. According to Jeshurun, the process of formulating and implementing security policy in Malaysia faced some difficulties as a result of the early state development. Nevertheless, it was the Malay historical experience that has materially informed the process of building a national consensus on threat perception and has shaped the evolution of a distinct strategic culture. Hence, the Malays had more influence over the strategy, formulation and implementation of security policy (Jeshurun 1999: 225).
Fourth, after the 1969 ethnic riots, a Malay-majority government started imposing more “pro Malay‟ policies, especially in the weakest economic sector (Bernasek 1997: 96). The riots had led to the NEP (New Economic Policy) with the aim of securing Malay hegemony in the political and economic sphere over the Chinese. This resulted in the post-1970 affirmative action programmes, as embodied within the NEP that sought to elevate the position of the Malays by giving them special treatment in areas of education, employment and access to ownership of assets. With the NEP, the Malays became an important ethnic category that was institutionalized and was critical in the distribution of developmental benefits to poor people (Baharudin 2001:362). The NEP was seen as a prerequisite to political stability and thus the retention of UMNO‟s political control and ethnic Malay hegemony.
Fifth, it is argued that emergency laws and actions would have restored political order and communal harmony. However, at the same time they actually provided substantial political benefits for the dominant group in the government, which was able to use emergency powers to strengthen their position against the opposition, to strengthen the ruling party against its coalition partners, and consolidated the power of ruling regime and his supporters within ruling party. It is also argued that by the time that emergency was practised, the political system might had undergone substantial change in an authoritarian direction.
Political Security or Liability?
The question of whether Emergency Law is a form of political security or liability cannot be answered straightforwardly. It is worth noting that, although the international situation had changed, the Malaysian leaders still relied on emergency laws. Due to the mixed character of previous security threats, Malaysian leaders believed that political stability was best maintained by sacrificing some political freedom for the benefit of national security. More importantly, the emergency law provided legal legitimacy for the ruling regime to rule. One might argue that Malaysia has now entered an era of new politics, identified with the reducing problem of communalism and the formation of two- party system. However, the failure of the opposition coalition, which championed the course of inter-communal parties, led the Malaysian government to the view that the problem with ethnicity and communalism was still not ended. Furthermore, the communal threat continues to be part of the security problem as long as people live in uncertainty and fear of each other’s motives. Enhancing one’s security could mean diminishing other’s security. The task for Malaysian leaders is to balance and weigh the importance of security concerns on a moderate basis, rather than adopting a straightforward approach. Ex-Prime Minister Tun Mahathir explained that although emergency law is still relevant it should not be permitted to use against any opposition whimsically and unfairly.(4) Such unlawful application of Emergency Law will then become liability to people and they will react in a form of protest and demonstration to void the law. On the other hand, to the ruling party, Emergency law must be continued as a vanguard and a guarantee to political stability.
(4) Interviews with Tun Mahathir Mohamad, Yayasan Al-Bukhari 2009
The main reason to continue with Emergency Law such as ISA was also due to how Malaysian history is interpreted. To the policy makers, past history of crises should become a lesson to present generation. The Malaysian state, through its central decision makers, formulated emergency law that were rooted in its own unique historical experience, in the way the state developed after the attainment of independence, and in the institutional, constitutional, political, and social structures inherited from the colonial era. By analyzing the period of the early Malaysia, this articles notes that this period was critical as some of the security problems were inherited from the British administration in Malaya, for instance the problems of Communism and communalism. Major security problem such as the Communist insurgency, as well as other subversive elements related to it could give us understanding on the reason behind the continuation of the emergency law. In this respect, such security problems posed threats to the sovereignty and legitimacy of the state as well as its political stability. This has qualified such threats to be tackled by exceptional means. To the ruling regime, these security threats were the main challenges to Malaysian political security, which critically shaped the thinking about the survival of the state and nation. Hence, the emergency law was seen as imperative to sustain political stability and security.
Due to public pressures, the issue to review emergency law was also taken by Malaysian policy makers. As a result, a slight review on the application of ISA was done. The ruling party was in favour to maintain the law with a little modification. To totally vanish the law was never been an intention to majority of them. The 2002 Minister in the Prime Minister's Department (in charge of law matters), Rais Yatim was reported to have said that the ISA "needs tightening" to curb judicial scrutiny of the reasons for detention. The review, he added, would focus on the need to keep matters relating to State security, and sensitive documents, out of court, and that an ISA review report was being prepared for presentation to Parliament (The Star Newspaper, November 12, 2002). In a similar vein, earlier in 1996 and 1998 Rais Yatim opined that, in light of the clamour for the repeal of the ISA by the public, agreed that the ISA "was not hundred percent perfect and the sections which did not allegedly meet humanitarian aspects could be reviewed" (Yatim, 1996 and 1998.)
As a result of some modifications of emergency law, reasons and motives for detention without trial can now be questioned in court. The Malaysian Bar Council in a press statement said:… in addressing the issue of whether a detention (by the police) is lawful, the court can now examine the reasons for such detention, and go beyond the detention papers (Infoline 2002).
Despite public pressures, the application of ISA is still continuing. Public understanding of human rights and political tsunami since 1999 until 2008 election had given hope to end ISA. However, commitment of present government of thoroughly revising the emergency laws (ISA, Police Act etc) is still debatable. The change is still considered inadequate.
The need for the existence of the ISA or any part of it in the context of the country's current circumstances had earlier become the subject matter of great debate in 1999 and 2008 Malaysia General election. In both elections, the opposition parties in Malaysia gain a higher political momentum as this is popularly known as “political tsunami” in Malaysia. The ISA was severely questioned by Malaysian publics due to the way some political activists were detained and infamous image of Anwar's blackeye, courtesy of a severe police beating in solitary confinement while being held under the Internal Security Act, serves as important issue to opposition parties during the elections. In 2008, ISA again became important issue in the election. The election had reduced and marginalized the ruling party against the mainstream oppositions led by Anuar Ibrahim’s Pakatan Rakyat (People’s Coalition) whereby the ruling coalition was in disarray as a result of slim victory against the Pakatan Rakyat. In the same year, the federal government administered by the Barisan Nasional ruling party, underwent significant political fragmentation in its relation with state governments controlled by the oppositions as well with East Malaysian state of Sabah and Sarawak. On 26 August 2008, the ruling party was also defeated in a by-election at Permatang Pauh, a district at a northern part of Peninsula Malaysia. The core issue in the election was related to ISA. A month after, on September 12, 2008 news portal editor Raja Petra Kamaruddin, Democratic Action Party Member of Parliament Teresa Kok and a Chinese newspaper journalist Tan Hoon Cheng were arrested under ISA. They were all detained for allegedly being a threat to "security, peace and public order". While Petra was detained for two years, Tan and Teresa Kok was released after their arrest. The opposition to ISA also came from inside the ruling party. In 2008, Zaid Ibrahim, the Federal Minister in the Prime Minister's Department (in charge of law matters), protested against the use of the ISA against those detained and resigned from the Cabinet. In an open letter to the PM, he said:
The events of the last three weeks have compelled me to review the way in which the ISA has been used. This exercise has led me to the conclusion that the government has time and time again failed the people of this country in repeatedly reneging that one solemn promise made by Tunku Abdul Rahman. This has been made possible because the government and the law have [sic] mistakenly allowed the Minister of Home Affairs (56) to detain anyone for whatever reasons he thinks fit. This subjective discretion has been abused to further certain political interests (Newsportal Malaysiakini, September 30, 2008.)
In the aftermath of 2008 election, Malaysia seems to undergo significant political change. But it does not mean any change to Emergency Law. Prime Minister Abdullah sudden announcement in June of 2008 his plan on resignation, was followed shortly after by an announcement that he would remain in office until October 2008 and then until 2010. Additionally, Abdullah announced his deputy, Najib, as his choice for the next prime minister. Of the opposition political parties, Parti Islam Se-Malaysia (PAS, Pan Malaysian Islamic Party), Democratic Action Party (DAP) and Parti KeADILan (National Justice Party) all a member of Pakatan Rakyat was able to rule five major states. This could also mean their political control in these states and their continuing efforts of the abolishment of ISA agenda.
Change and modification of ISA is not much and inadequate. On the grounds of national security, the ISA has been frequently accused by mainly opposition parties as employed by the authorities to control harmless political opponents. On April 2009, the New Prime Minister, Najib announced that the Barisan Nasional (federal) government would comprehensively review the ISA (New Straits Times, April 4, 2009). Since coming into power on April 3, 2009, Najib has portrayed himself as a reformer. He released 13 ISA detainees, including key HINDRAF leaders, and promised that he would amend the ISA. However, until the end of 2010, no abolition of ISA was done by Razak‟s administration despite a loud protest from opposition parties and quarters of the public. Similar to previous administrations, the current administration is still in favour to continue with ISA. It is very difficult to the ruling regime to abolish ISA amid changes and modifications as it can become an acid test to the party in power in which they cannot afford to do so. The ruling party regards ISA as a form of Emergency Law that guarantees security and stability at a cost of depriving some form of human right. For those reading Malaysian political history, such stand was not unusual and the ruling party, Barisan Nasional was more than willing to be accused as perpetrator of human rights rather than gambling on political stability and security. This is probably the price that Malaysian has to pay for the sake of achieving political stability and security.
In short, as a result of crises in Malaysia, the ruling regime in Malaysia opted to continue with the application of emergency laws to protect political security. However, the limit of what should be regarded as part of security matters had been blurred since the ruling regime had interpreted almost all forms of threat as a threat to national security. In the past, the Emergency was proven to bind the different communities and classes together. The overwhelming electoral victory of the ruling party destroyed all Communist claims to represent the popular will. By winning the “heart and minds‟ of the Malayan people and by adopting a constitutional means to achieve independence, the government was able to protect Malaya’s political security. As long as this understanding exists, Malaysia will continue to institutionalize emergency measures as a tool to achieve political stability. As a result of a series of security threats in the 1960s, the Malay ruling regime decided to adopt a strategy of political hegemony to control the state, to achieve political stability and to strengthen the regime in power. Furthermore, the declaration of emergency in various era give us a lesson that the current Malaysia, although no emergency was declared but is always in a state of awareness. Like a time bomb, racial and political conflicts could appear at any time. This make Malaysia as a country which had taken security as a main priority.
Apart from the proclamation of the Emergency and the institutionalization of the security policy, it is also argued that the ISA as a form of Emergency Law has often been used to stifle legitimate dissent. The continued implementation of the ISA became the excuse for the authorities to govern the country on a permanent emergency basis. ISA helps the implementation of the NEP, which was seen as a prerequisite to political stability and thus the retention of UMNO‟s political control and ethnic Malay hegemony. ISA also provide substantial political benefits for the dominant group in the government, which was able to use emergency powers to strengthen their position.
The question of whether Emergency Law is a form of political security or liability cannot be answered straightforwardly. It is worth noting that, although the international situation had changed, the Malaysian leaders still relied on emergency laws. The main reason to continue with Emergency Law such as ISA was also due to how Malaysian history is interpreted. To the policy makers, past history of crises should become a lesson to present generation. However, due to public pressures, the issue to review emergency law was also taken by Malaysian policy makers, but with a slight modification. The ruling party was not able to gamble and to put their political stability into test by abolishing ISA. Despite outcries and criticisms, mainly from the opposition party, the Barisan Nasional government is consistent in their stand to continue with ISA.
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