Sunday, 6 September 2015

The New Phase of Democratic Reform in Malaysia: “Federal Constitution: Preserve, Protect & Defend” (Updated photo on 7 Sep 2015)

The New Phase of Democratic Reform in Malaysia:
“Federal Constitution:
Preserve, Protect & Defend”
Firdaus Husni

[Editor’s note] This article is full text written by Firdaus Husni, specially for "The New Phase of Democratic Reform in Malaysia" forum organised by Sahabat Rakyat held on 6 Sep 2015 at DeFortune Restaurant, Kulai. Firdaus Husni is the Co-Chairperson of the Bar Council Constitutional Law Committee. The following is the original full text, Chinese rendition will be published later.

I. Introduction

A very good afternoon to Sahabat Rakyat’s Working Committee, honoured guests, the speakers, ladies and gentlemen.

To all members of Sahabat Rakyat Malaysia, congratulations on the 14th anniversary of the establishment of Sahabat Rakyat as one of the many civil societies that contribute towards the betterment of democracy and human rights in Malaysia. The road towards a greater society, a greater nation is never easy, which is why it is crucial for civil societies to work together in whatever capacity, by whatever means possible, to achieve the common goal for a better Malaysia.

And so on behalf of the President of the Malaysian Bar, and the Bar Council, we thank Sahabat Rakyat for the invitation to speak at its 14th anniversary commemoration event. We thank you for the opportunity for an exchange of views on how together we can bring improvements to the situation in the country. There are a lot of rooms for improvement where democracy and human rights are concerned. It is through open and mature discussions and discourses such as this can the public be exposed to the market of ideas and be empowered to make an informed decision about the direction of the country, our country. 

The people should be exposed to the market of ideas. In fact, with globalisation and the advancement of information technology, as we speak, the people are being exposed to the market of ideas. To give you some perspective, according to the statistics provided by the Malaysian Communications and Multimedia Commission, we have 70.4% internet broadband penetration rate for households in Malaysia for the first quarter of 2015. As for mobile phones, we have 146.2% penetration rate for the first quarter of 2015. That’s crazy!

The point is, we are now in an era where it is almost impossible to control the flow of information. What we can and should do therefore is to accommodate the rakyat in the exercise of their freedom of speech and expression as guaranteed under Article 10 of the Federal Constitution. We do this by creating awareness of the masses about their rights, about democracy and good governance, about the powers of the government and limits of those powers. These are the essence of the Federal Constitution of Malaysia, our Constitution. What I am trying to say here is, it is high time that we educate the masses about the Federal Constitution.

II. Federal Constitution: The History

In recent years, Malaysians have become more aware of current issues, the laws, and matters concerning governance. Citizens today are demanding to know how these issues, laws and policies could affect them, how do these laws and policies affect them, and how they too can effect change on these laws and policies. This is what we called participative democracy, where involvement of the citizens goes beyond the ballot box. Our duty towards the country should not just end the moment we cast our vote at every general election, but we should also make our voice heard when it matters.

Few days ago, we celebrated the Independence Day for what was then Malaya. I am sure many of you are familiar with this chapter of the nation’s history. On 31 August 1957, at Stadium Merdeka, in front of thousands of people, the Proclamation of Independence was read by Tunku Abdul Rahman, followed with shouts of Merdeka, loud and clear across the stadium, seven times to be exact.  Fifty-eight years on, that single pivotal moment has now become the most iconic moment of the birth of what was to become Malaysia. You will sometimes see it at our local coffee shops and hotels, that iconic black and white photo where Tunku Abdul Rahman stood on the stage with the sea of people looking on full of pride and joy.

It was on that historic day that the Federal Constitution came into force. But 58 years on, what has become of our Federal Constitution? Have we stayed true or diverted far from the ideals and aspirations of our Constitution?

In few days time, the nation will celebrate its 52nd Malaysia Day. Again, I ask this question. Fifty-two years on, what has become of our country? Have we stayed true or strayed away from what our forefathers envisaged for the country?

III. Federal Constitution: The Present

Sadly, we now see a dangerous pattern materialising.

We hear certain groups lauding themselves as defenders of the Federal Constitution, but in reality these groups pick and choose which constitutional provision they say they want to uphold, and ignore the rest.

The Prime Minister in 2012 has announced that his government has decided that the archaic Sedition Act 1948 will be repealed. But in 2014, he backtracked on his promise when he announced that not only will the Sedition Act be maintained, but it will also be strengthened. 
We then read about how repressive laws such as Prevention of Terrorism Act 2015 (which came into force on 1 September 2015) and amendments to Sedition Act 1948 are bulldozed through in Parliament without much debates on how these laws could affect citizens’ rights and liberties, as guaranteed under the Federal Constitution.

We hear certain individuals making the call to revoke the citizenship of human rights defenders when the Federal Constitution safeguards one’s citizenship.

We also hear of attempts to introduce the argument in Malaysia’s highest court that Islamic laws in Malaysia should not be subjected to the provisions in the Federal Constitution specifically on fundamental liberties, when the Constitution clearly provides that it is the supreme law of the federation, and that all other laws not consistent with the Constitution shall be void.

We hear about public institutions in the country being harassed or influenced by the powers that be, compromising their independence and integrity, when these institutions are integral to a functioning democracy.

We learnt of certain websites being blocked, media’s publishing permits being suspended, journalists and editors arrested, when the Federal Constitution guarantees the citizens’ freedom of speech and expression.

We also learnt of investigations being conducted on non-governmental organisations actively pushing for human rights issues, when the Federal Constitution guarantees all citizens the right to form associations. 

This is an alarming development, one that we should not allow to continue to fester.

Why? Because the Federal Constitution belongs to all of us. It belongs to me, it belongs to you, it belongs to each and every Malaysian citizen out there. 

Article 8(1) of the Federal Constitution provides that all persons are equal before the law and entitled to equal protection of the law. The Federal Constitution therefore does not only protect the interest of certain sections of the society. Instead, the Constitution protects the legitimate interests of all Malaysian citizens. It certainly does not come into existence to further political interest, but to serve and protect the public interest.

Unfortunately, many seem to forget that equality in the eyes of the law is guaranteed to everyone under the Federal Constitution.

IV. The New Phase of Democracy

The government itself once declared, that the era of “government knows best” is over. This is the new phase of democracy. Yes, by definition, democracy is essentially a government where its leaders are elected by the people. We choose who we want to lead us. But the elected leaders must lead in accordance with the rule of law, they must lead within the framework as set out under the Federal Constitution which seeks to keep the powers that they have in check through an effective separation of powers, check and balance and the protection of the rights and liberties of the people. These are part of the oath they take when they are sworn into office - that they will protect, preserve and defend the Constitution.

Having said that, our responsibility as citizens should not stop once we have elected our wakil rakyat to sit in the State Assembly or the Parliament. We should not only leave it to the public institutions to provide the much needed oversight mechanism on the power between the legislative, executive and judicial branches in the country. We too are the checks and balances. When we see injustice, abuse of power, and violation of our constitutional liberties, speak out, make our voice heard. Sooner or later, those elected will have to listen to our collective voices if they want to get re-elected.

In order to do this, citizens must first empower themselves with the knowledge of the laws. We incessantly talk about the significance of protecting the Federal Constitution, but how are we supposed to protect the Federal Constitution when we do not even know what is in the Federal Constitution?

Our first Yang Di-Pertuan Agong, Tuanku Abdul Rahman, when His Majesty opened the first parliamentary session of Malaya on 12 September 1959 said this, and I quote:

It is Our earnest hope that as many as possible of Our subjects will take early opportunity to make themselves familiar with our Constitution, and with the powers and procedure of our Parliament.

This was 56 years ago. Today, how many of us have taken the earliest opportunity to make ourselves familiar with the Constitution?

V. MyConstitution Campaign

It is for this reason that the Bar Council in 2009 launched a nationwide campaign called the MyConstitution Campaign. We aim to promote constitutional awareness to the Malaysian public. Among others, we organise talks, roundtable discussions and workshops around the country, we did radio and television interviews, we published articles and opinion pieces, booklets and public service announcements containing simplified contents of the Federal Constitution, and we established our presence on social media. All these are done to bring the messages of the Federal Constitution into the hearts and minds of the people.  

It is heartening to note that of late there have been calls for Malaysians to choose the middle path of moderation, as opposed to extremism. This is commendable. Yet, moderation does not and cannot exist in a vacuum. It starts with acceptance of the colourful fabric that makes Malaysia Malaysia, it begins with the willingness to work together to reconcile conflicting interest, it demands respect for one’s human rights, and more importantly, it necessitates the need to uphold the Federal Constitution. Despite its imperfections, the Federal Constitution in many ways paves the path towards moderation and togetherness.

Surely, the Malaysian Bar is not the only association that advocates public awareness on the Federal Constitution, which is precisely why we must all work together, so that the call to empower oneself with the knowledge of the Federal Constitution can reach to as many Malaysians out there.

VI. Conclusion

Change does not happen overnight, particularly when you are talking about effecting a social change. It is almost human nature to resist changes especially one that takes you out of your comfort zone. Still, change we must. 

There have been silent attempts to rewrite the Federal Constitution. This is disturbing to note. Let there not come a day when we open the Federal Constitution only to realise that the protections and safeguards that the Federal Constitution provide are no longer in the Constitution because we were not there when these protections and safeguards were taken away from us, and that it is too late to change that.

The Federal Constitution is ours. Let’s claim ownership of the Federal Constitution.  All of us, let’s preserve, protect and defend the Federal Constitution, not just for us, but for generations to come.

Once again, congratulations on the 14th anniversary of Sahabat Rakyat. 

Thank you.


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