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Friday, July 10, 2009

> Reviewing our outdated Acts

by C Celestine

A special committee has been set up under the Prime Minister's Department to review outdated Acts.

Minister in the Prime Minister's Department Mohamed Nazri Aziz said most of these Acts existing between 1948 and 1952 during British rule imposed outdated sentences.

"For example, four Selangor Umno Youth members were recently fined RM1,000 each under an old Act for preventing Karpal Singh (Member of Parliament for Bukit Gelugor) from entering Parliament. The fine is rather small by present standards.

"The court could not pass a stiffer penalty as the provision of the Act was such," Nazri told reporters after closing the family day of the Chenderoh chapter of the Malaysian Ex-servicemen Association.

Headed by Deputy Minister in the Prime Minister's Department Liew Vui Keong and aided by the Attorney General's Chamber, Nazri said the committee would advise whether the laws needed to be amended with regard to offences and penalties.

While Home Minister Hishammuddin Hussein brought to the Prime Minister's Department attention some Acts dating back over 60 years, the public would like to know about Suhakam’s report to Parliament submitted in April 2001 listing such Acts needing reform.

Fear and distrust of authority

These powerful laws were passed with clear intentions considered necessary to keep social and political order at a specific point in time said Institute of Southeast Asian Studies Fellow Ooi Kee Beng.

The laws were established amidst the Emergency during a global Cold War, the significance of events of those days should be seen in that light.

Malaysia, he believes, has an overkill of such laws. “We have too many of them, which puts the country mentally in a perpetual state of crisis. Fear and distrust of authority becomes part of our political culture,” he added.

The laws he was referring to and mentioned by the Ministers are:

* The Constitution (Amendment) Act 1971 specifically Articles 152, 153 and 181 and Part III permitting Parliament to pass legislation limiting dissent with regard to provisions pertaining to the social contract.

(The social contract was a quid pro quo agreement between Malay and non-Malay citizens, for non-Malay citizenship at Independence, symbols of Malay authority such as the Malay monarchy became national symbols and head of Islam for the Muslim nation and Malays granted economic privileges as natives of Malaya and the region.)

* With this new power, Parliament amended the Sedition Act 1948, (Amendment) 1971. The new restriction applied to Members of Parliament overruling part of Parliamentary privilege at the same time.

* Article 159, which governs Constitutional amendments, was to entrench "sensitive" Constitutional provisions. Any changes to "sensitive" portions of the Constitution would have to pass the Conference of Rulers, a body comprising the monarchs of the Malay states.

* The Internal Security Act, 1960, which permits detention without trial was amended to stress "intercommunal harmony".

* The others are The Emergency (Public Order and Prevention of Crime Ordinance (EO) 1969, Printing Presses and Publications Act 1984, Universities and University Colleges Act 1971, Police Act 1967and Official Secrets Act 1972, (Amendment 1986).

Mechanism for review and amendment

Ooi believed laws become unnecessary because times change and situations evolve. There is a mechanism for review and amendment of laws in our legal system, he said.

If people can govern themselves without being policed, then laws and enforcement agencies would be unnecessary but it is not the impression given as seen in road rage.

The danger, he pointed out, lies in the fact the government was too dependent on these laws and used them as a short cut in law enforcement leading easily to accusations of political abuse.

Citing global terrorism as a reason to reactivate these laws allows a chance to control and manipulate society to rule without dissent.

“One of the aims of global terrorism, today, is to destroy complacency in society. When we react and reactivate harsh laws to protect ourselves, we very quickly accomplish exactly what the terrorists want,” he said.

A competent police force aided by an independent judiciary minimises the need for draconian laws.

Ooi opined that because of these laws, Malaysia remains in a state of tension and fear without realising its full potential, Fear means stand-offs and an avoidance of dialogue between different groups and the government.

“We get defensive, we play safe, we avoid sensitive issues, we pretend we are more sensitive than we actually are and we play tit-for-tat with other groups. We do not trust the government, the courts and the police. We do not believe we can go beyond these stand-offs” he added.

Umno leaders ignorant of facts of history

One of the issues touching on legal principles and values such as human rights is Chin Peng's request to return. He explained it should be based on legal considerations such as the conditions of the peace treaty between the Communist Party of Malaya (CPM) and the Mahathir government based on humanitarian grounds.

Director at the Centre for Policy Initiative, Dr Lim Teck Ghee, reminded Malaysians that British academicians studying that period conceded the CPM was an anti-colonial and nationalist force.

However, at the Baling Talks of 1955, Tunku Abdul Rahman Putra Al-Haj turned down Chin Peng's request for the CPM to be recognized legally. This could be due to Chin Peng not agreeing to "the detention" of his people as a condition for an amnesty among other things.

“It is the present government including Umno leaders’ ignorance of facts of history that lead them to engage in a distortion of it.

“ A reason for the current ruling establishment's 'amnesia' on that important period of our formative history was the CPM included many non-Chinese members and sympathisers and it posed a threat to the established political supremacy at that time,” Lim said.

As stipulated by the Haadyai Agreement, within a year after the Dec 2, 1989 signing of the agreement, Chin Peng notified the government of his intention to return to reside in his country of birth.

He complied with the terms and conditions of the Haadyai Peace Agreement but to date the government has not met its obligations.

Challenging International law

The government's refusal to grant Chin Peng residence violates Malaysia's obligations under the terms of the Haadyai Peace Agreement and obligations under the United Nations' Universal Declaration of Human Rights and of the United Nations' International Covenant on Civil and Political Rights according to the International Association of Democratic Lawyers (IADL).

Recently Chin Peng, 83, sought a High Court order to allow him to return to Malaysia which was turned down.

One must remember Chin Peng was born in Dindings, then a part of the Straits Settlements. Special citizenship rules applied to such persons following Merdeka.

Former Inspector-General of Police Hanif Omar said Chin Peng was not allowed to return to Malaysia because he had never been a citizen of the country.

Hanif said that "Chin Peng was not a citizen of Malaya. He was born in Dindings, Perak, which was then a settlement ceded to the British. So, he became a British subject.

"When Perak was no longer under the British administration, the Malays in Dindings became subjects of the Sultan of Perak but Chin Peng, no longer a British subject, became stateless.

"People say we could accept Shamsiah Fakeh and other former Malay communist leaders so why can't we accept him (Chin Peng)? (The answer is) because he is not a subject of the sultan."

Nationalists or betrayers of the nation?

Chin Peng was awarded the Order of the British Empire (Military) for fighting the Japanese and leading the Malayan People's Anti-Japanese Army (MPAJA) in resisting Japanese occupation of Malaya.

He was supported by a group of Malay anti-establishment leaders. “We see again the urgent need to separate the version put out by politically-driven polemic and propaganda from that which may be deducted from historical facts,” said Lim.

The recent barrage of this issue elicited response from prominent people such as Information, Communications and Culture Minister Dr Rais Yatim who reminded society especially the young to not look at communism as something that was noble and had values.

"Actually the communists in the country were betrayers, killers and they will be remembered as such.

"We have to look back at history and remind people the country became independent and prosperous not through communism and the communists were traitors," he added.

Lim in turn questioned: “Why is the government afraid of permitting open discussion of the alternative versions to the official history?”

These attempts at intellectual repression may work with the controlled mass media but Malaysians can now easily access the electronic media, to decide for themselves the true role of Chin Peng in Malaysian history, he added.

CPM may have been provoked into retaliation

The CPM upon the British re-establishing themselves in Malaya was motivated to insist on freedom from colonial rule, he stressed.

“There was an ideological ferment against colonial rule not only in Malaysia but in many other parts of Asia. There were other factors besides the deep sense of nationalism and abhorrence of colonial rule.”

Many in the CPM were driven by the fact they lost family members as a result of the Japanese regime and by their disappointment with British rule.

Of equal importance was although the CPM was predominantly Chinese in membership, it was a heterogeneous group embracing Malaysians from different communities, classes and strata of society.

Armed struggle or peaceful negotiations was long and hotly debated by the leadership, rank and file and its sympathisers. This gives the impression the CPM may have been provoked into retaliation when its members were ambushed or attacked by then government forces.

Chin Peng should be allowed to return along the principles and spirit of the Haadyai Accord, Lim urged.

These laws were identified by the Malaysian Human Rights Commission (Suhakam) Law Reform Committee as needing reform in 2001. Declining to state the specific provisions in the Acts, all then chairman Musa Hitam would say was they were relevant to the human rights issue - Malaysian Mirror.