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Changes in the nation’s horizon
Reflecting On The Law By Shad Saleem Faruqi
Whether by revocation by the King or annulment by Parliament, all emergency legislations will cease to exist six months after the end of an emergency proclamation.
Image via WikipediaTHE Prime Minister’s surprise announcement that the Emergency will be lifted, that the Internal Security Act will be repealed, and that laws like the Printing Presses and Publications Act will be amended to constitutionalise and humanise them has fired everybody’s imagination, and at the same time raised apprehension among the defenders of the status quo.
One reader asked whether the Prime Minister consulted with, and obtained, the consent of the Cabinet before making these bold pronouncements.
No outsider can answer this accurately, but what can be pointed out is that in parliamentary democracies, prime ministers are known to launch bold initiatives on their own and to present their Cabinets and their countries with a fait accompli.
Clear examples are decisions on premature dissolution of Parliament and budget and foreign policy initiatives.
In 1956, Anthony Eden of Britain got his country embroiled in the disastrous Suez invasion, and informed his Cabinet only after British paratroopers had landed on Egyptian soil.
In a strictly legal way, the prime minister is not bound by the Cabinet; instead the Cabinet is bound by the direction he supplies.
Politics may, of course, encourage a consultative approach but all students of parliamentary government know that the prime minister is the sun around which the Cabinet revolves.
Individual ministers are bound under the doctrine of collective ministerial responsibility to support their prime minister or step down from office.
Another reader asked whether the Prime Minister’s announcement means that the Emergency is already lifted? The answer is in the negative.
The Emergency is proclaimed by the King and either he must revoke his proclamation(s) or the two Houses must by resolution annul the proclamation(s).
If the King (acting on advice) revokes a proclamation, the revocation comes into effect immediately.
However, if the two Houses are to debate and vote on a resolution to annul, that process can be expected to take some weeks or months because the Dewan Negara will probably convene only after the Dewan Rakyat’s lengthy budget session beginning in October.
However, if immediate parliamentary action to annul the 1966, 1969 and 1977 proclamations is thought desirable, the two Houses can meet concurrently to draw to a close the 47-year saga of the existing post-independence Emergency.
Once a proclamation expires, whether by revocation by the King or annulment by Parliament through an Emergency Act of Parliament or a piece of subsidiary legislation under an emergency law, all emergency legislations will cease to exist six months after the proclamation.
If the Emergency ends, does the Internal Security Act (ISA) also cease to exist? The answer is in the negative. The ISA is a law against subversion under Article 149.
It is independent of Article 150 and has a life of its own, no matter what happens to the Emergency.
If the ISA is repealed, will those detained under the ISA have to be released? Undoubtedly, yes.
If the basis of their detention is extinguished, the detention, too, ceases to be valid.
Even if there is a new law under Article 149 to deal with security or terrorism cases, that law cannot be backdated due to the prohibition of Article 7(1).
Of course, the detainees may face new prosecutions under the Penal Code or the new laws.
The rule of double jeopardy will not apply.
Will the Government have to pay compensation to all people detained under the ISA, including in previous years?
The answer is “no” because the legality of an act must be judged by the law at the time of the commission of the act and not by what happens afterwards.
How can the ISA be repealed? Does its repeal require the consent of the Conference of Rulers?
Under Article 149, any law against subversion may be passed or repealed by Parliament. A simple majority vote is sufficient. The consent of the Conference of Rulers is not needed.
From what we have heard, the ISA will be replaced by two laws on terrorism and national security.
Some cynics are saying that the move is therefore purely cosmetic and political.
The ISA may end but preventive detention may remain. I think we should hold our judgment on this issue till we see the substantive content of the proposed new laws.
I would give anxious consideration to the following issues:
> The concepts of terrorism and national security must be precisely and objectively defined and must not have any catch-all tendencies.
> There should be no exclusion of judicial review so that any abuse or misuse of power can be tested in the courts.
It is acceptable that on matters of security, the political executive must have a strong say without excluding the power of the courts to determine independently whether security was indeed involved or not.
> There must be some safeguards against political detentions.
> The power of the police to detain for purposes of investigation must be drastically reduced from the present 60 days to no more than three weeks.
> The Minister’s power, as at present, to order detention for two years and for such further periods as he deems necessary must be abolished.
Detentions on the orders of the Minister raise the unconscionable issue of accuser, adjudicator and executioner being combined. Some separation of powers and some check and balance is desirable.
Justice must not only be done but must be seen to be done.
> The power to try, to convict and to detain must be committed to a Special Security Court or Anti-Terrorism Court (or by whatever name called).
> Anxious consideration must be given to the composition of this Special Court which must arouse public confidence.
> The executive must accuse, the court must decide.
> Special procedural rules for security trials exist in many countries and must be examined.
Perhaps trials should be held in camera (without the public present).
Whatever the case, there must be fair due process. The accused must know the charge.
No incriminating evidence must be withheld from him and from the judge, as is possible at present.
The accused must be allowed to defend himself fully and fairly.
> The penalties and the maximum period of detention must be prescribed.
> Whether there should be no appeal in “security” and “terrorist” trials is a matter for further consideration.
We have many model legislations from many countries that we can emulate.
Whatever we follow must show fidelity to our own Constitution and to the primary instruments of international law.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM and Visiting Professor at USM.
Keep the momentum up!
Question Time By P. Gunasegaram
The momentous changes proposed by the Prime Minister need to be pushed through with the utmost urgency for greater effect.THE overwhelming support and acclaim from Malaysians over the proposals by the Prime Minister to repeal the Internal Security Act or ISA and lift all proclamations of emergency show just how unpopular these measures are among Malaysians.
Datuk Seri Najib Tun Razak has read the signals right. But as important as these and other proposals are, the larger agenda is even more significant – to review and if necessary repeal and replace all laws which stand in the way of demo-cracy, legitimate free expression, and human and individual rights.
Two paragraphs from Najib’s speech last Thursday are worth re-quoting: “It is absolutely clear that the steps I just announced are none other than early initiatives of an organised and graceful political transformation. It stands as a crucial and much needed complement to the initiatives of economic transformation and public presentation which the government has outlined and implemented for over two years in the effort to pioneer a modern and progressive nation.
“…the Malaysia that we all dream of and are in the process of creating is a Malaysia that practises a functional and inclusive democracy where public peace and prosperity is preserved in accordance with the supremacy of the Constitution, rule of law and respect for basic human rights and individual rights.”
Two things are necessary to carry these reforms to its natural conclusion. The first is to keep the momentum generated up and without any delay implement what has been promised. Any delay and back-pedalling to cater to the interests of some sections of the community will have the effect of raising cynicism yet again.
The second is to look into all the other laws which need to be changed to allow Malaysians to exercise all their full rights as enshrined in the Federal Constitution without hindrance.
That means that all those laws that are in direct contradiction to the letter and spirit of the Constitution must go. The sooner they go, the better. There has to be demonstrable urgency over this matter.
Already there are some politicians who are saying that the amendments to make some of the major changes cannot be tabled at the forthcoming Parliament session and will have to be deferred to next year. That will be a wrong start.
The necessary repeals of the relevant legislation can be made and still passed by Parliament this year for implementation next year. By that time, other legislation such as a counter-terrorism Act to still allow detention without trial under special circumstances and under judicial review can be introduced.
That will have the effect of setting a timetable for the implementation of the proposed changes already announced so that no one will doubt that the Government is serious about implementing the promises.
Already, there is talk that some sections within the ruling party and some parts of the police force are opposed to the repeal of the ISA and the Banishment Act. But these people must not be permitted to stop – or even delay – the reform process set into motion by the Prime Minister.
Simultaneous with the rapid implementation of the announced measures is the necessity to do an urgent yet comprehensive review of existing laws to expand the public space and bring forth important issues to be debated maturely and openly – with no threat from any party.
The proposal to remove the yearly licensing requirement for publications including newspapers under the Printing Presses and Publications Act is a relief, but a small one. The Home Ministry still wields disproportionate power and has the right to stop publication at any time without there being any recourse to the courts.
For the full flowering of legitimate expression across the board, it will be necessary to repeal fully this Act. That of course does not mean we are free to publish whatever we want because we will still be subject to provisions of the law for defamation, sedition, secrecy and so on. There is still adequate check and balance.
Another piece of draconian legislation that needs to be reviewed is the Official Secrets Act (OSA). This Act was amended in the eighties to provide for mandatory jail sentence and gave the Government the right to determine what affected national security without review by the courts.
In practical terms, this has prevented many issues of great public interest such as toll agreements to come out into the open. In practical terms, the Government could classify the number of cups of coffee consumed in a departmental canteen as a secret and anyone who reported it could be convicted under the OSA and go to jail for a minimum one year.
New legislation should be worded such that it respects secrecy when it involves issues of national security, not cover up inefficiency, incompetence or breach of trust by the Government. That would help ensure a more accountable government.
One other Act which deserves mention is the University and University Colleges Act that prevents local students from taking part in political activities and being aligned to political parties. This is strange considering that many of our founding fathers were political activists from their student days.
They may be students but they are also adults and as adults should play their full role in society, including taking part in political activities. That is part and parcel of developing their maturity and making them better members of society in future.
There is no doubt many other pieces of legislation need to be reviewed and the task is momentous. However, momentous as it is, the momentum that has been created by the announcement of the proposals must not be lost. We must press on relentlessly.
Momentum is of the utmost importance for change to take place. We need to turn the wheels of transformation faster instead of slowing them down with all manner of unfounded excuses. Malaysia and Malaysians have to move forward and quickly.
> Managing editor P. Gunasegaram believes in the old axiom that change is the only constant.
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