No guts, no allegory
Richard C. Gibbs, Q.C.
Malaysia. Constitutional monarchy. Parliamentary democracy. Federal state. An Executive responsible to Parliament. Heavy influence of British legal tradition. An independent judiciary. The Barisan Nasional, the governing coalition of political parties, has consistently held in excess of two-thirds of the seats in Parliament, a majority that allows for amendments to the Merdeka (Freedom) Constitution. The Prime Minister, Dr. Mahatir Mohamad, a doctor by training, has been in power since 1981. Dr. Mahatir wrote of Parliament:
In the main, Parliamentary sittings were regarded as a pleasant formality . which would have no effect on the course of the government. The sittings were a concession to a superfluous democratic practice. Its main value lay in the opportunity to flaunt the Government's strength. Off and on, this strength was used to change the constitution. The manner, the frequency and the trivial reasons for altering the constitution reduced this supreme law of the nation to a useless scrap of paper.
Between 1957 and 1993 there were 34 amendments to the constitution. It is the most-amended constitution of any known democracy.
What laws has an unchallengeable Parliamentary majority bequeathed to Malaysia?
A 1988 constitutional amendment allowed Parliament to abolish judicial review of federal law by a majority vote. Let's look at some of the laws that have been put beyond judicial reach:
The Internal Security Act (ISA)
This is a preventive detention statute aimed at anyone "acting in any manner prejudicial to the security of Malaysia or to any part thereof or to the maintenance of essential services therein or to the economic life thereof" [section 8(1)]. The Home Minister may make an order detaining any such person for two years, renewable indefinitely.
By a 1989 amendment, section 8B(1) was added:
There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, an act done or decision made by . the Minister in the exercise of [his] discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.
Dr. Mahatir again:
It is not appropriate for us to follow the practice in other countries where courts play an interventionist role in substituting the decisions of the Executive as this is against the concept of "separation of powers" between the Executive and the Judiciary.
By section 8(5) the Minister may impose a restriction order on any person, prohibiting him or her from being out of doors between specified hours, requiring him or her to notify authorities of his or her movements, prohibiting him or her from addressing public meetings or taking part in political activities, or from travelling outside the country or any part thereof specified in the order. As with detention orders, there is no judicial review of the Minister's decision.
Section 22(1) permits the Minister to ban publications that are prejudicial to the national interest, public order or security of Malaysia.
Essential (Security Cases) Regulations (ESCAR)
The Attorney General can designate any offence as an ESCAR prosecution. These procedures directly indict the accused to trial by a High Court Justice without a jury. Witnesses need not identify themselves when they testify. Hearsay is admissible and given the same weight as direct evidence. Upon conviction, the maximum permissible sentence must be imposed. The death sentence thereby becomes mandatory for some of the ESCAR prosecutions.
Sedition Act, 1948
Sedition, in Malaysia, is anything that has a seditious tendency. A seditious tendency includes exciting disaffection against the government, raising discontent or disaffection among the inhabitants of Malaysia, or promoting feelings of ill-will or hostility between different races or classes of the population of Malaysia. Conviction brings the possibility of a substantial fine or imprisonment up to three years, or both.
The Printing Presses and Publications Act, 1984 (PPPA)
By section 3(3):
The Minister may in his absolute discretion grant to any person a license to keep for use or use a printing press for such a period as may be specified in the license and he may in his absolute discretion refuse any application for such license or may at any time revoke or suspend such license for any period he considers desirable.
By section 7(1):
If the Minister is satisfied that any publication contains any article, report, caricature . which is in any manner prejudicial . to public order, morality, security . is likely to alarm public opinion . or is likely to be prejudicial to public interest or national interest, he may in his absolute discretion . prohibit . the printing, importation . circulation, distribution or possession of that publication.
By section 8A(1):
Where in any publication there is maliciously published any false news, the printer, publisher, editor and writer thereof shall be guilty of an offence.
Since 1987, the Home Minister's PPPA discretion has been beyond judicial review.
Publications banned at one time or another under the PPPA include Time, the International Herald Tribune, Asiaweek and the Far Eastern Economic Review.
Under section 48 of the constitution, anyone fined more than a small amount or jailed for more than a year is disentitled to sit in Parliament.
* * *
I travelled to Malaysia in January, 2002 to observe the sedition trial of Karpal Singh, a prominent lawyer and politician who was charged for words spoken in open court in the defence of his client. In October, 1987 Mr. Singh, then an Opposition Member of Parliament for the Democratic Action Party, had been detained under the Internal Security Act. I had the pleasure of dining just off Merdeka Square with Karpal Singh and Lim Kit Siang, another leader of the Democratic Action Party. Mr. Lim had been detained under the Internal Security Act in 1970 and again in 1987. I also had the honour of meeting the United Nations Special Rapporteur on the Independence of Lawyers and Judges in Malaysia, Dato' Param Cumaraswamy, a former Vice-Chair of the Malaysian Bar Council. He had been prosecuted in 1985 for sedition for criticizing the Pardons Board for failing to commute a death sentence.
My personal assessment: Karpal Singh, Lim Kit Siang and Dato' Param Cumaraswamy are wonderful, kind, intelligent, educated and conscientious human beings - a credit to any beach they may wash up on. Yet each had felt the wrath of Malaysian society's sanctions.
Malaysia, taken in allegory, may cause us to reflect on unbalanced government: an independent Malaysian Judiciary, but one not entrusted with sufficient constitutional authority to counterbalance Executive and Legislative abuses of fundamental freedoms. Freedom of the person, freedom of association and freedom of the press reduced to the subjective whim of the Executive in the ISA and the PPPA. Too much law and order; not enough regard for human rights.
When folks raise the Charter to rail at our independent judiciary for making law and overriding the will of Parliament, consider the alternative and thank your lucky stars that the Canadian balance has been struck differently.
The Law Society of British Columbia is suing the federal government over incursions of the Proceeds of Crime (Money Laundering and Terrorist Financing) Act into the confidential relationship between solicitors and their clients, recruiting lawyers as secret agents of the state to surreptitiously inform on their clients. The Law Society is suing the Government of British Columbia to establish that it is not just the Executive's decision to close law courts.
Be patient with the Benchers; we have not lost our minds, nor have we developed an insatiable appetite for litigation. We just have a vision of an appropriate line between the branches of government: the independent Canadian judiciary (enabled by an independent bar), differentiated from the legislative and executive branches. There are changes in the topography of the Canadian legal landscape of which an independent bar cannot approve. We grouse have some strutting and pecking to do. No guts, no allegory.