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Sunday, March 8, 2009

> Assault on Legislature, Constitution dead

by Malik Imtiaz Sarwar

Discussing the Perak situation with specificity is, by this stage, a difficult thing to do. So much has happened so quickly. Nuanced actions and counter-actions, some of them in uncertain legal terrain, and relatively scarce details have made it precarious to consider certain key events — the legal action against the Speaker and its incidents, for instance — with the depth that only certainty would allow for.

Having said that, whatever the specifics may be and whoever may be right as to the validity or legality of certain aspects of the unfolding saga, when considered from a broader perspective and with reference to the fundamentals of democracy, I do not think that the situation in Perak is very complicated at all. As Tengku Razaleigh recently observed, a chain-reaction of illegality has left Perak possibly without a legitimate government and the Constitution a dead piece of paper.

I was too young to fully appreciate the terrible impact on democracy that the events of 1987 and 1988 had. Understanding came later, as I learnt to see what needed to be seen: the supremacy of the Constitution, the separation of powers and the check and balance it is aimed at, the independence of the judiciary and, correspondingly, the legislature. But even as my awareness of what had happened and how it had happened increased, I rather naively found myself thinking that it was unlikely that we would ever see anything of the likes again. Those events had simply been too heinous and the injuries inflicted on this nation too serious to ignore, even by those who had been responsible and those who would possibly follow in their footsteps.

Or so I thought.

The savagery of what has happened in Perak and the utter disregard of consequence on the part of those orchestrating the campaign go far to show how foolish I was to have believed that all of us, without exception, recognise that some costs are too great and for that, even blind ambition has its limits. It is clear now that this is not necessarily the case; for some, even the nation itself is expendable.

In saying savagery, I recognise that there has been neither bloodshed nor preventive detentions, though it is still too early to say for sure that things will stay that way. The incitement carries on, and mobs are being driven to frenzy to the throb of the war drums. Amidst the calls for blood, bullets have been sent, a disabled parliamentarian assaulted and some of his colleagues battered. The police have apparently too much on their hands to move with the speed that they are capable of and, as such, as things stand serve no useful role as the deterrent that the situation sorely requires.

Violence has however been done; to the federal and state constitutions, to the Rule of Law and to all that these fundamentals represent. War has been waged on democracy itself.

I can think of no other way to characterise events.

As thing stands, the Speaker is still the Speaker. He has been at all times vested with the full powers of his office and the discretion to exercise those powers. He may have committed mistakes in arriving at certain decisions, but those are matters for the Legislative Assembly itself or, where legal limits have been transgressed, for the courts whose powers in this regard are limited by reason of the separation of powers. Until corrected, the Speaker’s decisions stand, be they the acceptance of the resignation of the three members who crossed the floor, the issuing of the show-cause notices to the alleged usurpers of power and the effecting of their suspension, or the calling of the emergency sessions of the assembly.

And yet under the hand of the Executive, in a manner reminiscent of the locking up of the Supreme Court in 1988 the Legislative Assembly itself was put out of bounds to members of the assembly, This was done at the instigation of the State Secretary, an officer of the executive and as such its representative, with the assistance of a police force duty bound to protect the system of governance and associated freedoms put in place by the constitutions of this nation.

In doing so, the Executive laid siege on the Legislature. The sight of the Federal Reserve Unit barring the way into the Legislative Assembly, fangs bared and water cannon poised, was as close a physical depiction of democracy being taken hostage as we will ever see. The underlying intention of the exercise brings this further into relief. It was apparent that the assembly had to be prevented from meeting for as long as it took for the lawyers to do what they could in court. Injunctions against the Speaker had been applied for. Once these were granted, the process that the Speaker had started would be brought to a halt.

The fact that the injunctions had been applied for shows clearly how far democracy was subverted. The making of the applications underscores awareness on the part of those orchestrating the campaign that self-help was not permissible. The validity of the Speaker’s actions had to be tested before a court of law. If they were not needed, the injunctions would not have been sought.

Despite this appreciation of the obvious, the might of the state was brought to bear. A federal agency was brought in and tasked to do what it was not mandated by law to do: keep the assembly at bay to protect the interest of a coalition of political parties.

There is no law that allows police officers to deny members of a legislative chamber access to that chamber for the business of Legislature. It is not for any police officer to unilaterally determine that the business being conducted is not within the ambit of the legislature, no matter who might say it is. What the police force did was not justified in law. No crime had been committed. Though the gathering masses was reason enough for a police presence, breaches of the peace did not occur nor were orders to disperse issued, unsurprising given that the focal point was the denial of access to the Legislative Assembly.

It is glaringly obvious that confronted with a scenario that left it vulnerable to a tactical manoeuvring of legislative procedure, and an inability to resolve the imbroglio to advantage, the Barisan Nasional at the state and federal level collectively took the law into its own hands. The plan to capture Perak had run into a brick wall and rather than go around it, they decided to blow it up and everything else with it.

The situation is comparable to a hypothetical scenario in which Pakatan Rakyat Members of Parliament barricaded Parliament House to deny Barisan Nasional Members and the Speaker access so as to prevent them from legitimately making a law that they would otherwise have. The only difference is if that had occurred, the Barisan Nasional would have denounced the exercise as an attempted coup d’etat and punished those involved to the full extent of the law at its disposal.

It does not make any difference that the Barisan Nasional forms the federal government of the day and is in a position to direct the police force; like all other institutions, these institutions are bound to act constitutionally and in accordance with the law. Malaysia is still a democracy predicated on constitutional supremacy. The expectation that all affairs will be conducted to the exclusive convenience and the advantage of the Barisan Nasional and its leaders is more suited to a dictatorship in which the Rule of Law means nothing.

Through the last week Malaysians have borne witness to a shameless display of belligerence and arrogance. We have heard a senior minister describe the emergency session, held by necessity under that now immortalised raintree, as “uncivilised”. Another senior minister described the Speaker as a “boy”. Though in line with the other ridiculous observations from ambitious Umno leaders Malaysians have had to endure since the beginning of the Perak affair, they do little to mask the obvious; that the Barisan Nasional appears to see no limits to what it is permitted to do to achieve its objectives.

And if it could do this in one state, what is to stop it from acting in the same way in other states or at the federal level. Judging by the way in which it has responded to criticism over its actions these past few weeks, it would seem nothing much. It is manifest that the Barisan Nasional considers itself a law unto itself.

That is the painful truth that lies at the heart of Tengku Razaleigh’s declaration that the Constitution is dead - The Malaysian Insider.

Malik Imtiaz Sarwar is the current president of the National Human Rights Society (HAKAM) and a lawyer. He has been at the forefront of efforts aimed at promoting constitutionalism and the Rule of Law, particularly in the face of worrying trends of Islamisation and race politics in government and wider society. His blog “Disquiet”, and weekly column of the same name with the Malay Mail, is widely read.