‘Jangan pinda undang-undang sesuka hati’!

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Mahathir’s advice that laws should not be easily amended sounds a bit rich coming from someone who did not hesitate to amend laws when he was in charge, observes Francis Loh.

You can know a person by the company he keeps - Photo credit: http://umno-kselangor.blogspot.com
You can know a person by the company he keeps – Photo credit: http://umno-kselangor.blogspot.com

Former prime minister Tun Dr Mahathir advised the Najib government a few days ago that laws and acts which have been formulated and implemented should not be changed sewenang-wenangnya.

Doing so, because of pressure from one or another group, would only create trouble for the nation (Utusan Malaysia, 17 July 2013), he said.

Living in harmony?

The former prime minister opines that the rakyat were living peacefully and harmoniously, mutually respecting one another, because of the existence of these laws which also served as guidelines to good behaviour. However, things have changed because laws like the ISA have been repealed. Nowadays there are even groups, he claimed, that are prepared to insult Islam. This happens when there are no more laws, he stated.

The former PM was of course referring to the recent case of Alvivi, two young Chinese non-Muslims who had uploaded onto their website ‘Selamat berbuka puasa’ greetings to Muslims while they were enjoying a meal of bah kut teh! Although they have posted their apologies for their stunt, theirs was a silly and insensitive posting which was rightly condemned.

But charging them with sedition and denying bail? That’s a different matter altogether. Considering that so many others who have denigrated other non-Muslim religions – like Perkasa leader Ibrahim Ali’s threat to burn bibles and Zulkifli Noordin’s belittling of Hinduism, for example –  have not been charged for their belligerence, disrespect and utter lack of sensitivity, the guardians of our law have acted most unfairly and unjustly.

Did the former prime minster speak out on those occasions? Of course not. After all, isn’t he the advisor to Perkasa? In fact, Utusan Malaysia reported that he had made the earlier mentioned remarks after he had had a closed door meeting with Perkasa president Ibrahim Ali.

In fact, the former PM also expressed concern over the Najib government’s intention to introduce new laws like theNational Harmony Act to replace the Emergency Ordinance and the Sedition Act. The government should think through more carefully its plan to change or replace the laws, he cautioned. It was because of such laws, he argued, that there prevailed harmony previously, that is, when he was still in charge.
 
Mahathir mudah lupa

Wow! The former PM does have a warped sense of harmonious living. But he, who once exclaimed ‘Melayu mudah lupa’, must now be accused of being very forgetful too! For it was under his charge that our Constitution and various Acts of Parliament were, time and again, amended. Worse, on almost all occasions, the amendments to the existing laws sought to make them even more coercive, closing up whatever loopholes there might have previously existed.

Consider for instance Dr Mahathir’s assault on our laws in the aftermath of Operation Lalang in October 1987. The ISA was amended to deny habeas corpus. A new Printing Presses and Publications Act was introduced requiring that publications apply for new licences every year (instead of renewals of existing licences). A new Broadcasting Act was also introduced.

Earlier that decade, he had amended the Societies Act and the Official Secrets Act, on both occasions, obstructing our path to democracy.

The Federal Constitution was also not spared. Significantly, it was under his charge that the inherent powers of the Judiciary were lost as a result of an amendment. Remember, Tun Salleh Abbas and several other judges were also removed in 1988.

Article 121.1A was amended. As a result of that amendment, the high courts have no jurisdiction “in respect of any matter within the jurisdiction of the syariah courts”. And since there is no authoritative and impartial machinery for determining questions of conflict of jurisdiction, this move opened the floodgates – evident some 20 years later – to the ongoing disputes over the competing jurisdictions of the civil and syariah courts and the problems of custody of children after conversion, body-snatching, etc.

Election laws also changed

As well, it was under Dr Mahathir’s watch that a set of amendments to our election laws were made in 2002. Following [Sec 9(A) of the Election (Amendment) Bill 2002], the electoral roll, once gazetted, is deemed final and can no longer be questioned or appealed against or reviewed, quashed or set aside by any court.
 
Yet another amendment to the same Election Act increased the compensation payable to any person aggrieved as a result of an objection made to the inclusion of his name on the electoral roll if it cannot be proven that the voter is a phantom one.

A third amendment increased the deposit required of contesting candidates, who also have to stump out an additional deposit to ensure prompt removal of posters and other paraphernalia.

Apart from the above, Section 19 of the Election Offences Act was also amended to allow for higher spending limits.

A final amendment introduced a new Section 4A that makes it an offence to act or to make a statement that promotes feelings of ill-will, discontent or hostility in order to induce any elector or voter to vote or refrain from voting at an election or to procure the election of any person.

Apart from these, some sections of the Election Offences Act were also amended to put them in tandem with the amendments to the Election Act.

Earlier, also under Mahathir’s watch, the Constitution (Amendment) (No 2) Act of 1984 removed the upper 10-year limit for constituency reviews. Consequently, reviews do not need to be conducted even after 10 years.

Instead, a new clause to Article 113 provides for the review of any affected area by the SPR whenever there is a change in the number of seats in parliament or any state assembly.

Significantly, the above clause absolves all such reviews from strict compliance with the principles of constituency delineation contained in the 13th Schedule of the Constitution. So, the clause provided Dr Mahathir’s BN ruling coalition much flexibility in reviewing constituencies.

For apart from the SPR initiating a review after, say, five years, the government of the day, if it has a two thirds majority, can change the number of seats in Parliament or the State and then require the SPR to conduct a review. And this can be done without adhering to the rules binding normal reviews. No doubt, this clause also allowed for the wide disparity in the population size of the constituencies that we see today.

Changes – for better or for worse?

Actually, the issue is not whether the Constitution and the laws are being amended or repealed arbitrarily by the Najib government. The forgetful former prime minister was always tampering with the law too, but perhaps with one difference.

Whereas the Najib government which claims itself to be a moderate one on the global stage has been forced to repeal some of the more repressive laws like the ISA in this era of Arab Spring, the Mahathir regime was always tampering with existing laws – to tighten the law and to roll back democracy. Not for no reason was he regarded as Mahafiraun!

A friend who sent me the Utusan Malaysia news item about Mahathir’s criticism of the Najib government was not wrong when he observed that the former prime minister was probably cracking one of the greatest jokes of the decade!

Maybe Mahathir should not be mixing with Ibrahim Ali so much.

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Francis Loh
Dr Francis Loh served as honorary secretary of Aliran for 20 years and then president of Aliran for five years from 2011 to 2016. He was formerly professor of politics at Universiti Sains Malaysia.

1 COMMENT

  1. The existence of laws like the ISA and EO did not prevent the disharmonious utterances and remarks made by the likes of UMNO and Perkasa. In fact, it has been used in most unjustified and irresponsible manner against those who were perceived as not being on the side of the ruling party. Teresa Kok was detained under the ISA based on a biased reporting by a newspaper without prior proper investigation. For an inflammatory statement made by an UMNO leader, a newspaper reporter who reported on it was detained under the ISA while the UMNO leader was spared from any legal actions. A leader of a group protesting against potential radiation contamination by the Asia Rare Earth metal was detained together with opposition politicians, educationist, social activist etc. under the mass ISA detention codenamed Operasi Lalang. To sum it up, draconian laws such as the ISA and EO were merely tools of oppression to safeguard the interest of the ruling party and has nothing to do with harmony, in which due credit must be given to the majority of the populace who were not taken in by the provocations made by those real troublemakers who were ironically spared from these ‘laws meant to safeguard harmony’.

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